New York Life Ins. Co. v. Torrance

• Decision Date: 05 October 1933
• Docket Number: 6 Div. 426.
• Citation: 228 Ala. 286,153 So. 463
• Parties: NEW YORK LIFE INS. CO. v. TORRANCE.
• Court: Alabama Supreme Court

153 So. 463

228 Ala. 286

NEW YORK LIFE INS. CO. v. TORRANCE.

6 Div. 426.

Supreme Court of Alabama

October 5, 1933

Rehearing Denied March 15, 1934.

Certiorari to Court of Appeals.

Petition of the New York Life Insurance Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in New York Life Insurance Co. v Gaston Torrance, 153 So. 458.

Writ denied.

Stokely Scrivner, Dominick & Smith, of Birmingham, for petitioner.

Lange Simpson & Brantley, of Birmingham, opposed.

FOSTER Justice.

Writ denied.

ANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.

FOSTER Justice.

In denying the certiorari to the Court of Appeals, we felt that it had made all the comment which was needed in justification of the result reached, and that we could add nothing of importance, assuming that the defendant had offered substantially the same evidence as that summarized by this court on former appeal, and that the cause was tried on that evidence together with that which the Court of Appeals mentioned as having been added on such trial. Since we denied the certiorari, that court has amended its opinion so as definitely to assert as a fact what we had assumed.

The contention is made that the Court of Appeals erroneously asserted that an issue should be determined by the jury, though there is no conflict in the evidence, if the jury may infer from the evidence that the complaint is true. The statement in the opinion of the Court of Appeals has been recognized as being correct by the uniform decisions of this court so far as we have had the matter called to our attention. The general charge should not be given "when the evidence is conflicting, or when the evidence is circumstantial, or when a material fact rests wholly in inference." Smoot v. Mobile & M. Ry. Co., 67 Ala. 13; Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329, 1 So. 561; Tabler v. Sheffield, etc., Co., 87 Ala. 305, 309, 6 So. 196; Tobler v. Pioneer M. & M. Co., 166 Ala. 482, 518, 52 So. 86; John v. Birmingham Realty Co., 172 Ala. 603, 55 So. 801; Alaga Coach Line v. McCarroll (Ala. Sup.) 151 So. 834.

The quoted statement of the opinion of the Court of Appeals is rather in accord than out of harmony with that of this court on former appeal in this respect.

The absence of conflict in the evidence on material facts is not the only test. We have shown that total disability is a relative term, and not controlled by the uncontradicted evidence that he regularly performed, in some manner, the functions of his business. Much of the proof was the opinion of expert witnesses. The ultimate fact itself is a conclusion or opinion upon the effect of the evidence. When different opinions exist by the experts, or their statements merely express their opinion as a deduction drawn from certain symptoms, though there is no conflict, the conclusion is finally with the jury, and the affirmative charge should be withheld.

McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Parrish v. State, 139 Ala. 16, 44, 36 So. 1012; Sov. Camp. W. O. W. v. Bass, 204 Ala. 28, 85 So. 273; Alabama G. S. R. Co. v. Hill, 93 Ala. 514 (12), pages 522, 523, 9 So. 722, 30 Am. St. Rep. 65; 11 R. C. L. 586.

It is not necessary to question the testimony of defendant relating to the amount of work done by the insured after March 27, 1929, or to find that it is contradicted in order that there shall be held to be a jury case, if a reasonable inference may be drawn from it all that insured was totally disabled.

The "plaintiff's evidence tends to prove that such work as he did was done under great mental and physical strain, and that so inefficiently as to cause his practice to fall away, because such work could not be performed in substantially his customary and usual manner" (from opinion of the Court of Appeals).

Such status of the evidence, in connection with that of defendant, may not show a factual conflict in the testimony of the witnesses, but may show a conflict of reasonable inferences, or proper deductions, from it all. It is then the province of the jury, and not of the court, to find the proper inference. To instruct the jury affirmatively for defendant would in effect hold as a matter of law that, because he did perform his business and professional functions to a substantial extent, he was not wholly disabled, though the jury may accept as true the opinion of medical experts that they were not done in substantially his customary manner, or according to the standards of the profession. Such effect would either be to disregard the opinion of the experts or to hold that the meaning of total disability is something else.

Of course we cannot disregard that testimony. Then is such meaning erroneously stated by the Court of Appeals? This court held on the former appeal that total disability, as defined in the policy, means "inability to do substantially all of the material acts necessary to...