N.Y. Life Ins. Co v. Thompson, 24182.
| Decision Date | 19 January 1935 |
| Docket Number | No. 24182.,24182. |
| Citation | 178 S.E. 389,50 Ga.App. 413 |
| Parties | NEW YORK LIFE INS. CO. v. THOMPSON. |
| Court | Georgia Court of Appeals |
Syllabus bp the Court.
1. A request to charge the jury, directed to the trial judge, submitted in writing before the retirement of the jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence of the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge.
(a) The trial judge properly refused the request to charge set out in the first special ground of the motion for a new trial.
2. Under the evidence introduced in this case it became a question for determination by the jury whether or not the plaintiff was totally and permanently disabled by reason of the loss of his leg, in that he was "prevented thereby from engaging in any occupation whatsoever for remuneration or profit, " as that provision has been construed by our courts.
Error from City Court of Reidsville; M. Price, Judge.
Suit by H. L. Thompson against the New York Life Insurance Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
Ernest M. Davis, of Camilla, and Lawton & Cunningham, of Savannah, for plaintiff In error.
P. M. Anderson, of Claxton, and Bruce D. Dubberly, of Glennville, for defendant in error.
The real question before this court in the present case might be substantially stated as follows: Did the evidence introduced at the trial authorize a finding by the jury that the insured, by reason of his injury, was totally and permanently disabled, within the terms of the policy. The policy, in this con-nection, provided 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 evidence disclosed that the defendant company, in October, 1923, issued a life and accident insurance policy to the plaintiff, who was at that time 14 years of age. As one of the benefits under the policy, it was provided that: "The company agrees to pay to the insured disability benefits one par cent, of the face of this policy ($10 per $1,000) each month during the lifetime of the insured and also to waive the payment of premiums, if the insured becomes wholly and permanently disabled before age 60, subject to all the terms and conditions contained in section 1 hereof." The pertinent part of section 1 referred to in this provision is that provision which is quoted above. In the application for this insurance policy, the insured gave as his then "present occupation, " that of "farming and going to school." During the month of January, 1924, the insured contracted a disease which resulted in the amputation of his leg in April, 1924. The defendant paid the plaintiff at that time 6 monthly installments amounting to $60 up until September 1, 1924, and then refused any further payments. A suit was filed in behalf of plaintiff in November, 1924, for 15 installments of $10 each, and a default judgment was rendered thereon for the amount sued for on March 9, 1926. This petition, verdict, and judgment was filed as a part of the pleadings in the present case. To the present petition the defendant filed certain demurrers which were overruled by the trial court, and this judgment was affirmed by this court in New York Life Ins. Co. v. Thompson, 45 Ga. App. 638, 165 S. E. 847. The present suit is brought to recover payments from December 1, 1925. The plaintiff swore that at the time of the issuance of the policy he was staying with his father, working around the farm, baling hay, and plowing, etc., but was not getting paid for his work other than his upkeep; that his father gave him a patch of cotton or something like that which kept him going. He testified that he expected to make farming his life work. He further testified that he was now in the same condition as he was when the first suit was filed and judgment had. "My condition is just as bad now as it was when the suit was filed, and I feel a little bit worse * * * I have not physically been able to do any work since the suit was filed." He testified that his inability to get work was Plaintiff attended school from September, 1924, until he graduated from high school in May, 1929. The evidence further disclosed that plaintiff had not been able to procure any job that he could perform, although he had tried several petty jobs. He was a candidate for clerk of the city court of Glenville, in October, 1933, and his announcement contained this notice to his fellow citizens: "I am sure I am capable of handling the duties of the office; and, if elected, I will serve to the best of my ability." It was further shown that plaintiff made application to the Civil Works Administration for work, and in his application stated that he had an artificial leg and that he could perform manual labor. He explained that he made this application because he was told that some job would be given him which he could perform. The jury rendered a verdict in favor of the plaintiff.
In the case of Cato v. ^Etna Life Ins. Co., 164 Ga. 392, 138 S. E. 787, the Supreme Court had under consideration a suit brought on a policy of insurance providing for total and permanent disability, which policy provided: "If * * * 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." It was there held, in construing the meaning of this provision, that:
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