New York Life Ins. Co. v. Jones

• Decision Date: 05 October 1943
• Docket Number: 4 Div. 787.
• Parties: NEW YORK LIFE INS. CO. v. JONES.
• Court: Alabama Court of Appeals

17 So.2d 879

31 Ala.App. 417

NEW YORK LIFE INS. CO. v. JONES.

4 Div. 787.

Alabama Court of Appeals

October 5, 1943

Rehearing Denied Nov. 23, 1943.

Reversed on Mandate May 9, 1944.

Rushton, Weil, Stakely, Johnston &amp Williams, of Montgomery, for appellant.

Martin & Jackson, of Dothan, for appellee.

RICE, Judge.

Appellee had judgment in the court below against appellant, in her suit brought in four counts against it. Each count--but all for the same cause of action--claimed a sum due her by appellant under the terms of an insurance policy issued by it to her.

As the learned nisi prius judge put it:

"Gentlemen the plaintiff, Mrs. Jones, brings her suit to recover a certain sum of money against the defendant, the New York Life Insurance Company, which she insists that she is entitled to recover for and on account of certain terms and provisions contained in a life insurance policy issued by the defendant to the plaintiff at the time disclosed by the testimony in this case, the date of the policy appearing in the policy itself, and on account of a certain provision in that policy to the effect that in the event she became totally disabled to engage in any gainful employment or occupation during the life of the policy that the company would pay to her the sum of $10 per month per thousand during the period of her total disability, the policy, as disclosed by the testimony in this case and appearing from the face of the policy, being for the sum of $2000, making the sum total per month which she insists that she is entitled to recover under the testimony in the case, and under the terms and provisions of the policy, the sum of $20 per month.

"She insists that she was totally disabled to engage in any occupation or work or employment during the months of June July, August, September, October, November and December, of the year 1940, and during the months of January, February March, April, May, June, July, August, September, October, and November, 1941."

Said nisi prius judge likewise charged the jury, orally, as follows, to-wit: "There has been some proof introduced in this case to the effect that prior to June, 1940, she gave notice or furnished notice to the defendant of her physical condition, and on that notice that the defendant paid her during several months or a certain period of time, recognized her total disability and paid to her the monthly payments of $20 per month. That testimony, Gentlemen, was permitted to go to you for the purpose, and for the purpose alone, to show that the defendant did have notice of her physical condition and otherwise that they had been notified with reference to her claim of total disability, and you should not, and the Court instructs you, not to take and consider that evidence for any purpose other than so far as it pertains to notice by the plaintiff to the defendant of her claim of total disability." In view of the excerpt from the oral charge of the court quoted just next above, we find no error in the action of the court in refusing appellant's motion to strike from any count of the complaint the words: "that the defendant acknowledged liability for the said four years and paid the plaintiff monthly disability benefits provided in said policy above set out until the 1st day of June, 1940."

The trial judge properly stated to the jury--and without objection:

"The testimony is not in conflict at the point of the issuance and delivery to Mrs. Jones of the policy sued on. There is no dispute, or the evidence is not in conflict, with reference to the payment of any past due premiums on the policy if the jury finds that she was totally disabled because the policy itself waives the payment of the premiums if she was, during the period covered by the suit, totally disabled, as I have defined total disability to you. There is no dispute that the defendant would be due the plaintiff the sum of $20 per month during the period covered by this suit, provided the jury finds that she was totally disabled, as I have defined total disability to you, during the period covered by this suit.

"So you see the main issue for you to determine in this case, and it is an issue of fact. You are not concerned with the physical condition of Mrs. Jones for any time other than the time covered by this suit, that is, from June 1, beginning June 1, 1940, and each month through November, 1941. That is the only period of time about which you are concerned, with reference to the physical condition of Mrs. Jones. That is the main issue in this case."

Also, as to what does and does not constitute "total disability" within the terms of the policy sued on, the trial judge charged the jury trying the case, as follows, to-wit: "Total physical disability, as used in the terms of the policy, does not mean in law, or under the rules of law of this State, that the person was helpless, incapacitated, physically incapacitated from doing anything, in a helpless condition. It does not mean that, but it does mean that the person is disabled physically to the extent that she cannot substantially engage in any occupation, or gainful occupation or work for which she is qualified or capacitated or trained or skilled in doing, that she, on account of her physical disability, is not able, or is incapacitated to engage in any gainful employment which she was qualified, capacitated, trained, skilled, or knew how to do. You have heard the testimony along that line, what Mrs. Jones did before she insists that she became physically unabled, the different things that she did. You have heard the testimony with reference to her qualifications, her ability, her training, her experience, and you have heard the testimony with reference to her physical disability as disclosed by the testimony in this case. You have also heard the testimony for the defense with reference to, in contravention or disputing the fact of her total disability within the meaning of the policy."

So far as we can discern the charge of the trial court, last quoted above, was in substantial accordance with the latest and last utterance of our Supreme Court on the subject, as contained in the opinion in the case of Mutual Life Ins. Co. of New York v. Danley, 242 Ala. 80, 5 So.2d 743. It was therefore correct. Code 1940, Title 13, Sec. 95. But if said quoted excerpt from the trial court's oral charge failed to embody accurately our Supreme Court's prevailing definition of "total disability," we think any deficiency in this regard was completely cured by appellant's requested written charge 7, duly given to the jury.

So the only contested issue in the case was submitted to the jury under correct instructions as to the law.

The bill of exceptions sent up here not reciting that it contains all the evidence--and we being unable to say that it does contain all the evidence--we, of course, do not consider the refusal of the trial court to give to the jury at appellant's request the general affirmative charge to find in its favor. Sims v. State, 29 Ala.App. 398, 198 So. 258, certiorari denied Id., 240 Ala. 177, 198 So. 259; All States Life Ins. Co. v. Johnson, 239 Ala. 392, 194 So. 877. And that is true with reference to the action of the trial court in overruling appellant's motion to set aside the verdict of the jury and grant it a new trial, on the ground the verdict was opposed to the great weight of the evidence. All States Life Ins. Co. v. Johnson, supra; St. Louis-San Francisco Ry. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433.

We are not so sure that we understand our duty as to considering appellant's requested written charges, other than the general affirmative charge, which were refused below, where, as here, it does not appear that the bill of exceptions contains...