N.Y. Life Ins. Co v. Thompson, 22083.
| Decision Date | 29 July 1932 |
| Docket Number | No. 22083.,22083. |
| Citation | 165 S.E. 847,45 Ga.App. 638 |
| Parties | NEW YORK LIFE INS. CO. v. THOMPSON. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 28, 1932.
On Motion for Rehearing.
Syllabus by the Court.
The court did not err in overruling the demurrers to the petition in this case.
Error from City Court of Reidsville; M. Price, Judge.
Suit by H. L. Thompson against the New York Life Insurance Company. Defendant's demurrer to the petition was overruled, and defendant brings error.
Affirmed.
Lawton & Cunningham, of Savannah, for plaintiff in error.
B. D. Dubberly and J. T. Grice, both of Glennville, for defendant in error.
Thompson brought suit against the insurance company on an accident insurance policy, in which the company obligated itself to pay to him a certain sum per month should he become totally disabled as provided therein. He alleged that he contracted a disease, the nature of which was unknown to him, necessitating amputation of his left leg near his hip, and that he is, and has been continuously, since losing his leg, prevented by such condition from engaging in any occupation whatsoever for remuneration or profit. The petition shows that at the time he lost his leg he was about 17 years of age and was a schoolboy. The defendant demurred generally, on the grounds that no cause of action was set forth in this petition, and that the mere loss of a leg by a boy about 18 years old does not amount to total and permanent disability within the terms of the policy. The court overruled this demurrer, and the defendant excepted.
The policy provides that 'disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease, so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit." The question for decision is whether the loss of a leg at or near the hip by a boy of 17 years, under the circumstances set forth above, amounts to total disability within the terms of the policy quoted.
1. Policies of insurance will be liberally construed in favor of the object to be accomplished, and provisions therein will be strictly construed against the insurer. Johnson v. Mutual Life Ins. Co., 154 Ga. 653, 115 S. E. 14; Penn. Mutual Life Ins. Co. v. Milton, 160 Ga. 168, 127 S. E. 140, 40 A. L. R. 1382. The contract should be so construed as to carry out the true intention of the parties. Civ. Code 1910, § 2475. The language of the contract should be construed in its entirety, and should receive a reasonable construction, and not be extended beyond what is fairly within its terms. Where the language is unambiguous and but one reasonable construction of the contract is possible, the court must expound it as made. Yancy v. Ætna Life Ins. Co., 108 Ga. 349, 33 S. E. 979; Wheeler v. Fidelity, etc., Co., 129 Ga. 237, 58 S. B. 709.
Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he must depend for a living. Total disability is the antithesis of partial disability. One is the opposite of the other. Cato v. Ætna Life Ins. Co., 164 Ga. 392 (2), 398, 138 S. E. 787, 790. The contract of insurance in the Cato Case provided: "If total disability of any employee entitled to insurance, under the schedule of insurance contained in this policy, begins before the age of 60, and if due proof be furnished the company after such disability has existed for a period of six months, and if such disability presumably will during lifetime prevent such employee from pursuing any occupation for wages or profit, such employee shall be deemed to be totally and permanently disabled within the meaning of this policy." So it was held in Marchant v. New York Life Ins. Co., 42 Ga. App. 11 (2), 155 S. E. 221, that "In a suit to recover benefits for a total disability as provided in an insurance policy which defined a 'total disability' as one whereby the insured is 'prevented * * * from engaging in any occupation whatsoeverfor remuneration or profit, ' evidence that the insured had sustained a bodily injury by reason of which he was forced to desist from substantially all of the usual and customary duties of the occupation being pursued by him at the issuance of the policy would have authorized a finding of total disability within the meaning of the contract." There is no substantial difference between the disability clause in the contract of insurance involved in the Cato Case and that in the case at bar; and the disability clause in the policy involved in the Marchant Case and the one contained in the policy in this case are identical.
The courts of most jurisdictions hold that "total disability" is inability to do substantially all the material acts necessary to the transaction of the insured's business or occupation, in substantially his customary and usual manner, and that total disability does not mean absolute physical inability to work at one's occupation, or to pursue any occupation for wages or gain. Cato v. Ætna Life Ins. Co., supra; note, 24 A. L. R. 203; 14 R. C. L. § 491. In our opinion, under the two decisions referred to above, this is the rule prevailing in this state. Furthermore, whether the insured is able to perform some other occupation is to be determined by a consideration of his education, experience, age, and natural ability. 1 C. J. 465, § 166.
Under the foregoing rulings, it being alleged in the petition that the insured had lost his leg by having it cut off just below his hip, and was therefore totally disabled and unable to perform any work or labor for remuneration or profit, the general demurrer was properly overruled.
2. Paragraph 5 of the petition is as follows: "That since he lost his leg petitioner has been wholly and permanently disabled, and though now only twenty-four years of age, he is, and has been continuously since losing his said leg, prevented by bis said condition from engaging in any occupation whatsoever for remuneration or profit." The insurance company demurred specially to this paragraph as a conclusion of the pleader, which demurrer the court overruled. The allegation of this paragraph was couched in the language of the insurance contract, and was not contradicted by the facts stated in the petition, as in the case of Parten v. Jefferson Standard Life Insurance Co., 30 Ga. App. 245, 248, 117 S. E. 772. This renders such allegation sufficient. McElfresh v. Odd Fellows Acc. Co., 21 Ind....
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