Pacific Mut. Life Ins. Co. v. McCrary

• Decision Date: 28 November 1930
• Parties: PACIFIC MUT. LIFE INS. CO. v. McCRARY.
• Court: Tennessee Supreme Court

32 S.W.2d 1052

161 Tenn. 389

PACIFIC MUT. LIFE INS. CO. v. McCRARY.

Supreme Court of Tennessee.

November 28, 1930

Certiorari to Court of Appeals, on Appeal from Circuit Court, Washington County; D. A. Vines, Judge.

Suit by Joseph R. McCrary against the Pacific Mutual Life Insurance Company. Judgment for plaintiff was affirmed by the Court of Appeals, and the defendant brings certiorari.

Modified and affirmed.

Susong Susong & Parvin, of Greeneville, and A. K. Morison, of Bristol, Va., for plaintiff in error.

Epps & Epps, of Jonesboro, for defendant in error.

GREEN C.J.

This suit was brought to recover the benefits provided for permanent total disability under a contract of insurance. There was a judgment for plaintiff, which was affirmed by the Court of Appeals, and the insurance company has filed a petition for certiorari.

The contract of insurance was admitted, but the insurer denied that the disability was either total or permanent.

The case was tried before the circuit judge without a jury. Under the provisions of chapter 94 of the Public Acts of 1929, the Court of Appeals reviewed the evidence and concurred in the finding of the trial judge. The case having been so tried this concurrent finding will be treated as a concurrent finding of a chancellor and the Court of Appeals, and such finding will not be disturbed in this court, if there is material evidence to support it.

In his application for insurance, the plaintiff below gave his occupations as those of physician and farmer. The evidence indicated that he had been quite active in the practice of medicine, and that he also owned several tracts of land, over six hundred acres in all, upon which land he conducted farming operations and raised cattle.

In so far as the permanent disability of the insured is concerned without detailing the proof, it is entirely sufficient to sustain the finding of the courts below. The evidence introduced on behalf of insured shows that he is afflicted with tuberculosis and myocarditis, with little or no chance for recovery.

It is, however. earnestly insisted by the insurance company in its petition for certiorari that the insured is not totally disabled. It seems to be granted that he is totally disabled from pursuing his profession as a doctor, but it is urged that he is not totally disabled from carrying on the work or occupation of a farmer and cattle dealer, and it is said that he continues to engage in these callings, and that he also lends money and sells land.

The provision of the policy as to total permanent disability, which we are called on to construe, is in these words:

"Disability caused by accidental bodily injury or disease which totally and permanently prevents the insured from performing any work or engaging in any occupation or profession for wages, compensation or profit."

The phrase "total disability" has a well-understood meaning in the law of insurance. It does not mean a state of absolute helplessness. The decisions, almost without conflict, define that condition as an inability to do the material acts necessary to the prosecution of insured's business or occupation (and substantially all the material acts) in (substantially) his usual or customary manner. Cases so holding are too numerous to be set out. They are cited and quoted in 14 R. C. L. 1315; 1 C.J. 462; and notes, 51 A. L. R. 1048, 41 A. L. R. 1376, 37 A. L. R. 151, 24 A. L. R. 203.

One may still be described as totally disabled, although he is able at intervals to perform certain acts in connection with the former...