Mutual Life Ins. Co. of New York v. Danley

• Citation: 242 Ala. 80,5 So.2d 743
• Decision Date: 11 December 1941
• Docket Number: 8 Div. 159.
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. Danley.
• Court: Supreme Court of Alabama

5 So.2d 743

242 Ala. 80

MUTUAL LIFE INS. CO. OF NEW YORK v. Danley.

8 Div. 159.

Supreme Court of Alabama

December 11, 1941

W.H Mitchell, of Florence, and S.M. Bronaugh and Bradley Baldwin, All & White, all of Birmingham, for petitioner.

Bradshaw & Barnett, of Florence, opposed.

THOMAS Justice.

Grounds for certiorari are variously stated. Among others, are the following:

The Court of Appeals erred in its definition of the term "total disability" as set forth in its opinion in the following words:

"In our opinion, and we hold, as good a definition as any other of 'total disability' (no question of permanency being immediately involved) as that term has been defined by the Supreme Court of our State is that used by the learned Judge who conducted the trial of this cause in the court below, to-wit: 'It does not mean a state of absolute helplessness, but means inability to do substantially all the material acts necessary to the prosecution of insured's business or occupation in substantially the customary and usual manner, or to do substantially all the material acts necessary to the prosecution of some gainful business or occupation which the insured was qualified to do and capable of doing and which would require substantially the same character of physical and mental training and effort." [Italics supplied.]

The Court of Appeals erred in holding that the definition of "total disability" under an insurance policy as set forth in the case of Protective Life Insurance Co. v Wallace, 230 Ala. 338, 161 So. 256, "stands unmodified by our Supreme Court [of Alabama]."

The decisions in Protective Life Insurance Co. v. Wallace, supra, and Protective Life Ins. Co. v. Hale, 230 Ala. 323, 161 So. 248, 252, were decided on rehearing by this court on May 2, 1935. Both cases were heard by the whole court. In the Hale case the rule was stated for the court as follows:

"The manifest intent of the contract in this case is that the total permanent disability maturing the contract must be such as to disqualify him, not only from engaging in the occupation, trade, or profession he was engaged in when the disability developed, but he must be physically disabled from doing and performing the substantial features of any gainful occupation, within the range of his mental and educational capacity, with the required skill and accuracy of any such occupation, and such disability must be presumably permanent and continuous. 1 C.J. pp. 465, 466, §§ 167, 168, and 169; Metropolitan Life Ins. Co. v. Foster [5 Cir.] 67 F. (2d) 264." [Italics supplied.]

In the Wallace case, supra, [230 Ala. 338, 161 So. 259], the rule is thus stated: "Total disability contemplated in insurance policies like the one under consideration 'does not mean, as its literal construction would require, a state of absolute helplessness, but means inability to do substantially all the material acts necessary to the prosecution of insured's business or occupation, in substantially his customary and usual manner'; or to do substantially all the material acts necessary to the prosecution of some gainful business or occupation, which the insured was qualified and capable of doing, and which requires substantially the same character of physical and mental training and effort. * * * " [Italics supplied.]

On rehearing in the Wallace case, Mr. Justice Gardner and Mr. Justice Brown qualified their concurrence as follows: "The Court on consideration of the rehearing holds that there is no conflict between the opinion in this case and the opinion in the case of Protective Life Insurance Company v. Hale , 161 So. 248, that nothing said in the opinion in this case is intended as a modification of the utterances in the Hale Case; therefore, we concur in overruling the application for rehearing in this case." [Italics supplied.]

It is insisted that there is a conflict between the language in the Wallace case and the Hale case. The Wallace case states that total disability means "inability to do substantially all the material acts" necessary to the prosecution of the insured's business, occupation or some other occupation for which he is qualified. The Hale case states that in order to be totally disabled the insured "must be physically disabled from doing and performing the substantial features of any gainful occupation, within the range of his mental and educational capacity."

Looking to some of our decisions it will be noted that in the case of Metropolitan Life Insurance Company v. Blue, 222 Ala. 665, 133 So. 707, 710, 79 A.L.R. 852, the clause defining total disability was substantially similar to that here involved. Dr. Blue suffered from a severe case of blood-poisoning for several months after which he undertook to resume his practice. He had, however, a stiffness in one of his wrists, a drawn condition of the little finger and to some extent of the third and fourth fingers on one hand and had a limited freedom of motion in the right shoulder which at times pained him. This Court, in its opinion said:

" 'Prevented from engaging in any work or occupation,' as applied to this case, means prevented from doing substantial and profitable work in his profession.

"We cannot give assent to the doctrine that he is totally disabled because he is somewhat handicapped, and cannot do all the specialized work he could before the disability intervened. 'Total' is in contradiction to 'partial' disability. The one cannot by mere construction be made to cover the other. Under the uncontradicted evidence, we conclude that, at the time of the trial, Dr. Blue was laboring under only a partial disability." [Italics supplied.]

It will be noted that Mr. Justice Bouldin for the Court states that the phrase "prevented from engaging in any work or occupation" as used in the policy here involved means that the insured is prevented from doing substantial and profitable work in his profession. The Court did not say that he was disabled unless he could do substantially all of the duties of his profession. There is a difference between a person's ability (1) to do substantial and profitable work in his profession and his ability (2) to do substantially all of the duties of his profession. If this Court had followed the rule used by the trial judge in the instant oral charge to the jury in the case at bar, it would have held that since Dr. Blue could not perform all or substantially all of the duties of his profession, because he did not have the free use of both hands, it would have held that Dr. Blue was totally disabled. It arrived at the contrary result.

In a decision subsequent to those in the Hale and Wallace cases, supra (Equitable Life Assur. Soc. of United States v. Davis, 231 Ala. 261, 164 So. 86, 88, opinion by the same Justice writing in the Blue case, supra), where the insured was an illiterate negro classed as a common laborer, not qualified to do any work other than that of a common laborer, who had lost the use of his left arm, this Court held that he was not totally disabled within the meaning of a disability insurance policy, and observed:

"It is of common knowledge that a man accustomed to manual labor, if otherwise in sound health, is not totally disabled to engage in many gainful occupations of that class.

* * * * *

"The general formula above quoted from the Wallace Case is not to be construed to strike out the word 'total' from such contracts, nor to abolish all distinction between 'partial' and 'total' disability. Such construction would rewrite the contract, would work a conflict between the Wallace Case and the Hale Case, considered at the same time, wherein our former decisions (New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547; Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A.L.R. 852) are cited and followed."

If total disability means inability to do substantially all of the acts necessary to the prosecution of the insured's business or some other business for which he is qualified, this Court could not have held in the Davis case, supra, that the insured was not totally disabled. A manual laborer with the use of one arm cannot do all the substantial duties of manual labor, the only kind of work for which he is qualified. In distinguishing the Wallace case, supra, this court has sought to so construe that opinion as to bring it in line with the opinion in the Hale case, supra. At least this is the effect of the limited concurrence indicated. This was not saying, however, that a trial court was not in error in instructing a jury in the exact language of the opinion in the Wallace case and not that used in the Hale case.

All of our subsequent decisions have not changed the rule laid down in the Hale case, supra, since the Court has chosen the rule or language of the Hale case rather than that of the Wallace case.

In a subsequent decision, Page v. Prudential Ins. Co. of America, 231 Ala. 405, 165 So. 388, 389, it appears that the plaintiff was an employee of a railroad as a brakeman, switchman or flagman. He got a cinder in his right eye, which finally resulted in the permanent total loss of the sight of that eye. He was thereby rendered permanently and totally disabled to engage in his employment as a member of a train crew. He was 47 years of age and had followed the avocation of a brakeman, flagman or switchman on the railroad the majority of his life and knew no other trade or profession but was of normal and average intelligence with ability to read and write. This Court held that Page was not totally disabled within the meaning of a policy of insurance providing for disability benefits. In the course of its opinion, this Court cited and quoted from both the Hale case and Wallace case, then made this statement:

"We...