New York Life, Ins. Co. v. Bain

• Decision Date: 19 February 1934
• Docket Number: 31072
• Citation: 152 So. 845,169 Miss. 271
• Court: Mississippi Supreme Court
• Parties: NEW YORK LIFE, INS. CO. v. BAIN

152 So. 845

169 Miss. 271

NEW YORK LIFE, INS. CO. v. BAIN

No. 31072

Supreme Court of Mississippi

February 19, 1934

Division B

1 INSURANCE.

Under life policy providing for "total and permanent disability" benefits, utter inability and entire helplessness of insured is not required as basis for recovery, which is based not on what insured does, but his condition, and whether activities will seriously endanger his health.

2 INSURANCE.

Whether insured, a plantation manager, after suffering second stroke of paralysis and becoming afflicted with high blood pressure was totally and permanently disabled so as to be entitled to disability benefits under life insurance policy, held for jury.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS, Judge.

Suit by Joseph L. Bain against the New York Life Insurance Company. Judgment in favor of the plaintiff, and the defendant appeals. Affirmed.

Reversed and remanded.

Watkins & Eager, of Jackson, for appellant.

The appellee, Joseph L. Bain, was not totally and permanently disabled within the provisions of this policy, or as contemplated by the parties.

Before the appellee, Bain, can recover, it must be proven by a preponderance of the evidence that he is both totally and permanently disabled, and the proof of the one without the other will not suffice.

Shipp v. Metropolitan Life Ins. Co., 111 So. 453, 146 Miss. 18; Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114, 113 Miss. 286.

The record in this case shows conclusively, and it is in fact admitted by all of the witnesses for the appellee, that Mr. Bain was able to ride horseback over the entire plantation as often as was necessary in the proper supervision of the plantation. It shows conclusively, and it is admitted, that the appellee was thoroughly able to direct the hands on the plantation, to give orders and directions and to go back and see that these orders were carried out as given.

Railroad Trainmen v. Nelson, 147 So. 661; Metropolitan Life Ins. Co. v. Blue, 133 So. 707; Coad v. Travelers' Ins. Co., 61 Neb. 563, 85 N.W. 558; Shirts v. Phoenix Acc. & Sick Benefit Asso., 135 Mich. 439, 97 N.W. 966; Fidelity & Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S.W. 838, 55 S.W. 179; Hurley v. Bankers' Life Co., 199 N.W. 343, 37 A. L. R. 146; Lyon v. Railway Pass. Assur. Co., 46 Iowa 631; Lobdell v. Laboring Men's Mutual Aid Asso., 38 L. R. A. 537; Federal Life Ins. Co. v. Hurst, 160 S.E. 533.

This case is controlled by the holding of this court in the case of Curlee v. Mutual Life Ins. Co., 144 So. 686.

H. F. Jones, of Belzoni, for appellee.

Holdings of nearly all courts are equitable and reasonable in the interpretation of total and permanent disability and it is not that literal interpretation which would require a complete condition of helplessness, nor such an entire physical or mental inability in respect to the pursuit of an occupation or employment that the insued can do absolutely nothing, and particularly in the construction the more liberal in its application to a case where the disability arises out of a disease the nature of which is such that common care and prudence require the insured to rest, to the extent that he shall refrain from the ordinary exactions of any fixed employment, else the disease will progress and cause death.

Equitable Life Ins. Co. v. Sereo, 124 So. 485, 155 Miss. 515; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750, 752; Lamar Life Ins. Co. v. Catlett, 139 So. 455.

What man, about his ordinary affairs of any business, would be regarded as worth while in any occupation whatever, who had to lie on his bed every few hours. This Bain must do.

We sincerely entertain the belief that a reversal of this case would certainly reverse the cases of Equitable Life Assurance Society v. Sereo, 155 Miss. 515, 124 So. 485; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Mutual Benefit Health & Accident Assn. v. Mathis, 142 So. 494; Lamar Life Ins. Co. v. Catlett, 139 So. 455; Heralds of Liberty v. Jones, 142 Miss. 743, 107 So. 519; Provident Life & Accident Ins. Co. v. Anding, 144 Miss. 277, 109 So. 670.

Argued orally by W. H. Watkins, Jr., for appellant, and by H. F. Jones, for appellee.

OPINION

Ethridge, P. J.

The appellant issued a policy in favor of the appellee which, among other things, provided for benefit in case of total and permanent disability. The provision involved reads as follows:

"Whenever the company receives due proof, before default in the payment of premium, that the Insured, before the anniversary of the policy on which the Insured's age at nearest birthday is sixty years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability...