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

• Decision Date: 04 December 1943
• Docket Number: 30041.
• Citation: 28 S.E.2d 334,70 Ga.App. 454
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. BARRON et al.
• Court: Georgia Court of Appeals

28 S.E.2d 334

70 Ga.App. 454

MUTUAL LIFE INS. CO. OF NEW YORK v. BARRON et al.

No. 30041.

Court of Appeals of Georgia, Division No. 1.

December 4, 1943

Rehearing Denied Dec. 20, 1943.

Syllabus by the Court. [Copyrighted Material Omitted]

Grover Middlebrooks, of Atlanta, Beck, Goodrich & Beck, of Griffin and Louis W. Dawson, of New York City, for plaintiff in error.

W M. Dallas, of Thomaston, for defendants in error.

MACINTYRE Judge.

This was a suit on an insurance policy in which Dr. Henry A. Barron, the insured, was suing for total disability benefits against the Mutual Life Insurance Company of New York. The policy sued on in this case provided that upon the insured (before reaching the age of 60 years) furnishing the defendant insurance company with proof that he is totally and permanently disabled as provided in said policy, the defendant insurance company would: (1) Waive each premium as it thereafter became due during such disability; and (2) pay to the insured monthly benefits of $50 per month for the first 60 months of said disability, $75 per month for the second 60 months of said disability, and thereafter $100 per month during the remaining life of said insured, so long as said disability continues. Dr. Barron, the insured, furnished the defendant insurance company with proof that he was totally disabled on January 1, 1927. The defendant company waived the premiums and began the monthly payments of total disability benefits according to the provisions of the policy, and continuously paid the same until the February, 1942, payment was made after which time the defendant refused to make further payments.

The rule as to total disability stated in Cato v. Aetna Life Ins. Co., 164 Ga. 392, 138 S.E. 787, and explained in the Metropolitan Life Ins. Co. v. Johnson, 194 Ga 138, 20 S.E.2d 761, is that so long as the insured has capacity to perform any substantial part of his duties, he is not totally disabled. "Total disability is inability to do substantially all of the material acts necessary to the transaction of the insured's occupation, in substantially his customary and usual manner. 'Total disability' does not mean absolute physical inability to work at one's occupation, or to pursue some occupation for wages or gain; but it exists if the injury or disease of the insured is such that common care and prudence require him to desist, and he does in fact desist, from transacting his business. In such circumstances, total disability exists." Cato v. Aetna Life Ins. Co. [164 Ga. 392, 138 S.E. 788] supra. The rule stated in the Cato case, supra, was where only one occupation [weaver] was involved and that was the one at which the claimant was working at the time the disability occurred. More than one occupation is involved in the instant case, to wit: Doctor of medicine, chairman of the board of county commissioners, and city councilman. The occupation in which the claimant was engaged at the time of his total disability [the first day of January, 1927] was that of a doctor of medicine; he was earning net $700 to $800 per month. Upon a showing made by the claimant, in accordance with a provision of the policy, the insurance company waived the premiums and paid total disability benefits up to and including the month of February, 1942, after which time they discontinued paying same on the ground that the plaintiff had recovered to such an extent that he was no longer totally disabled within the provision of the insurance policy. The question here arises as to what is the rule where the claimant has recovered from his disability to a named extent but does not resume the practice of medicine, the employment in which he was engaged at the time of the occurrence of the total disability. In Keith v. Chicago B. & Q. R. Co., 82 Neb. 12, 116 N.W. 957, 958, 23 L.R.A., N.S., 352, 356, 130 Am.St.Rep. 655, it is said: "If an injured member of the Relief Department recovers to the extent that he is no longer disabled in the performance of the work contemplated or similar work--that is, employment equally as desirable and remunerative--then the obligation of the defendant to pay disability benefits ceases." In the Prudential Ins. Co. of America v. South, 179 Ga. 653, 658, 177 S.E. 499, 502, 98 A.L.R. 781, the court speaking through Justice Bell, stated: "The expressions 'any occupation' and 'any work' were thus converted into words of concrete signification, and should be construed to mean the ordinary employment of the particular person insured, or such other employment, if any, approximating the same livelihood, as the insured might fairly be expected to follow, in view of his station, circumstances, and physical and mental capabilities." While the writer has read a number of foreign cases on this point, the rule in the South case, just quoted, appears to him to be the most helpful statement of the law of total disabilities as it applies to the facts of the instant case, for the explanation in the South case, of what some decisions call "similar employment," is clearer to the writer than in the other cases read. And, when we thus apply the rule quoted in the South case, supra, to the instant case where different kinds of occupations are involved, in order for the insurance company to be justified in refusing to continue to pay the total liability payments, by merely showing that the insured engaged in the other occupations, it must appear: (1) That Dr. Barron never became physically able to [nor did he] resume his work as a doctor of medicine; (2) that he engaged in employments which were to him desirable, and as he might be fairly expected to follow in view of his station, circumstances, and mental and physical capabilities; (3) and that the employment produced a like remuneration or approximated the same livelihood. Under the circumstances of this case, it is necessary that the proof show all three of these essentials. The defendant contended that it refused to make total disability payments after February, 1942, upon the ground that, after investigation, the defendant learned that the insured was not totally and permanently disabled within the policy definition. After verdict that view of the evidence which is most favorable to the plaintiff must be taken, for every presumption and every inference is in favor of the verdict. The evidence, when so construed, authorized a finding that: In 1927, the insured made claim for total disability benefits, which were paid until February, 1942. During the period for which the discontinued benefits were sought, the insured was chairman of the board of county commissioners of Upson County, Georgia; he had been re-elected for another term of three years; he had an office in the court house where he went almost every day. He was performing the duties of chairman of the board of county commissioners satisfactorily for which he received a salary of $75 per month. He was also, during the period in question, a member of the city council, mayor pro tem., and chairman of the street committee of the City of Thomaston, Georgia. He was also performing the duties of those offices satisfactorily for which he received a salary of $60 per month; and he was serving on other committees of the city council of Thomaston. The insured testified in part: "I was born on August 4, 1889. I was a practicing physician before I became disabled. I practiced in this county from 1913 to 1927. I did a general practice, a little of everything that a doctor does, and was on duty from 12 to 15 hours a day on up to 24 hours a day. I made an average of seven or eight hundred dollars net a month before I became disabled. I overworked myself and became disabled. *** I made proofs of my disability to the Mutual Life Insurance Company of New York and they recognized my disability and began to pay me in 1927. They paid me to February 1942, and then they stopped the payments. *** I am a very nervous man. I only get about three or four hours sleep at night. I rest some during the day when I feel bad, that is, I lie down but I don't sleep during the day time. *** I am very weak to what I was. I can not sleep if I exert myself at all. I stopped the practice of medicine about Christmas time, 1926. I made an average of seven or eight hundred dollars per month. None of my duties connected with the City or County require any physical exertion. My duties do not require me to do anything at any particular time. None of my duties prevent me from resting at anytime during the day if I desire to do so. The reason I get up in the night and come up town in my car is because I wake up and can not sleep and I get tired of laying in bed. The amounts he asked me about that I got from the city and the county is my gross salary. I do not have to do anything at any particular time. If I don't feel like it I don't have to go to the office and I can absent myself from the city council for the next five weeks if I want to. I do not supervise and oversee the hands in my capacity as Street Chairman, or as Chairman of the Street Committee. I tell Chief Rogers, the Chief of Police, what to do and he has charge of the street hands. If you were to report to me that the street you live on was in need of repairs the only exertion I would have would be to pick up the telephone and call Chief Rogers. I could do all of that sitting at home or in bed. If I had a report from somebody living out in the county as to any road, I could tend to it by sitting in a chair at my home and telephoning the camp and have it fixed that same day. I would not know whether it was fixed right or not if I went out there because I am not an engineer, and I do not supervise the actual work. The warden does most of the riding that is required of the county commissioners. The other two...