New York Life Ins. Co. v. Torrance
Decision Date | 31 March 1932 |
Docket Number | 6 Div. 977. |
Citation | 141 So. 547,224 Ala. 614 |
Parties | NEW YORK LIFE INS. CO. v. TORRANCE. |
Court | Alabama Supreme Court |
Rehearing Denied May 19, 1932.
Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.
Action to recover disability insurance by Gaston Torrance against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.
Douglas Arant, Kingman C. Shelburne, and Bradley, Baldwin, All & White, all of Birmingham, amici curiæ.
Lange, Simpson & Brantley, of Birmingham, for appellee.
The suit was to recover under the "permanent total disability" clause of three separate life insurance policies issued by defendant, two of which are identical, and the third differing only in minor respects, not essential here to note. In each it is provided that in order for the disability benefit to attach, the insured must become disabled before the anniversary of the policy on which the insured's age at nearest birthday is sixty years. Plaintiff became sixty years of age on September 30, 1928. The anniversary of the first two policies (in point of time of issuance) nearest to plaintiff's sixtieth birthday was March 28, 1929, and February 7, 1929, and that of the third March 29, 1929.
In order to recover under such disability benefit clauses, therefore, plaintiff must have become wholly and permanently disabled within the meaning of the language of these policies prior to the above-noted anniversary dates. Plaintiff insists, however, and so alleges in his complaint, that "on the 15th day of March, 1928," he had, "within the meaning of said policy," become and was wholly disabled by disease, viz., "Parkinson's Disease," otherwise called "Paralysis Agitans," so that plaintiff was and thereafter has been, and will be, presumably thereby, "permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit." These averments were in substantial conformity to the provisions of the policies as to disability benefits, which, in respects here important, read as follows:
Coming to the merits of the case, the question treated by counsel for the respective parties as of prime importance, relates to the refusal of the affirmative charge duly requested by defendant.
It appears that Dr. Torrance, the plaintiff, was for thirty years a physician and surgeon in the city of Birmingham of high repute and extensive practice, though for the past fifteen years he had largely confined his practice to surgery. We gather from the record that he was an indefatigable worker-a fact which doubtless largely contributed to his present condition. He closed his office, and gave up his practice, January 8, 1930, after a diagnosis a few days before had determined his trouble as "Parkinson's Disease," a serious chronic nervous disorder, insidious in its nature and difficult of determination as to when it begins. "It lasts anywhere from one to twenty years," states one of the physicians testifying in the cause. Prior to that time, plaintiff had submitted to only one examination by a physician, and that was in August, 1929, which lasted only a short time, and resulted in no positive diagnosis. Plaintiff did not know his trouble, nor that he had this disease, and no one had so indicated to him, until the diagnosis of January 5, 1930, though he states he had been in bad shape since 1927, and that probably his trouble had existed as far back as 1925, and that he now considers that the disease had definitely manifested itself on March 15, 1928. During this time, plaintiff states that he was nervous, became weak and sluggish, dragged his feet, carried his arms against his side, characteristic of persons with this disease; had difficulty in changing his clothes and consumed more time than previously in preparing for an operation as well as in the operation itself; and that in 1928 and 1929, he performed operations with difficulty, and had to force himself to his work. A number of physicians, with whom he was intimately associated in a professional way, testified as to the symptoms of this disease, which they had previously noticed, and some of them testified they formed the opinion, in their mind-though not expressed-in the spring of 1928, and one as early as 1926, that plaintiff was suffering with Parkinson's disease. Another, in charge of one of the hospitals, states that after noticing his condition in 1927, plaintiff did not perform operations in that hospital without a qualified surgeon being present. These physicians further testify there is no known cure for Parkinson's disease, but that its progress may be arrested and the patient's condition improved to some extent by a complete rest and cessation from all work; that such treatment should be prescribed immediately upon a diagnosis of such disease, and that they would have so prescribed for plaintiff had it been discovered as far back as 1926 and 1927 he had this disease, and that common care and prudence and good medical practice dictated he should have at that time desisted from all professional labor. One of the physicians states that he ceased sending surgical cases to plaintiff "approximately in 1926" (though he thinks he did send one case to him in 1927), "chiefly because plaintiff had apparently gotten very slow and unsteady in his hands, and I felt that a surgeon should be a little more acute, a little more steady, a little more safe in the eyes of the public." This physician conducted the brief examination of plaintiff in August, 1929, when no diagnosis was reached. Other physicians, save perhaps with one exception, seem to have sent surgical cases to plaintiff through 1929 and up to the time he discontinued the practice. Other than noted in the above quotation, the physicians did not notice any impairment in plaintiff's ability to operate during all of this time. And plaintiff himself evidently was not impressed with being seriously affected until his first examination in August, 1929, as in a number of applications for disability benefits under other policies, he places the beginning of his sickness at that particular time. The symptoms of this disease, now viewed in the retrospect, were noted by those intimately associated with the plaintiff. But from the record before us, it is evident that to the world outside, plaintiff was conducting his practice in the usual and customary manner throughout the years 1928 and 1929, and with the usual degree of success.
Much evidence is presented showing the amount of work and its character performed by plaintiff during this time, but a detailed discussion of it here would serve no useful purpose. We make reference thereto in a general way. First it is to be noted that his office remained open all of this time and he went there every day until it was closed January 8, 1930. He took out a license to practice medicine and surgery in Birmingham for the years 1928, 1929, and 1930. During the years 1928 and 1929, and for considerable time prior thereto, plaintiff had a contract with both the Republic Iron & Steel Company, and the Gulf States Steel Company, by which he furnished all medical and surgical services required by the employees, and paid the hospital expenses, for compensation paid by these companies, which was deducted from the wages earned by said employees. In the performance of these contracts, it would become necessary that plaintiff call in at times other doctors to assist, especially those specializing in certain lines of work, and for which he paid out of his compensation from the companies. These contracts continued in force until plaintiff's office was closed in January, 1930.
Plaintiff was also medical examiner for the defendant company in Birmingham, which required him to make physical examinations of applicants for insurance, each examination requiring thirty or forty minutes time. He was also medical referee for Alabama for the Mutual Life Insurance Company and the physical examination of applicants at his office required equal time and effort as those of defendant company, and in addition he was required to examine medical reports that had been sent in by other doctors from over the state which necessitated spending about two hours a day in the office of such company in Birmingham. This contract continued through September, 1929.
During the years 1928 and 1929, plaintiff did his surgical practice at three hospitals in...
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