Page v. Prudential Ins. Co. of America

• Citation: 231 Ala. 405,165 So. 388
• Decision Date: 16 January 1936
• Docket Number: 6 Div. 726
• Parties: PAGE v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Supreme Court of Alabama

165 So. 388

231 Ala. 405

PAGE v. PRUDENTIAL INS. CO. OF AMERICA.

6 Div. 726

Supreme Court of Alabama

January 16, 1936

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action to recover disability benefits under a group policy of insurance by Joe H. Page against the Prudential Insurance Company of America. From a judgment for defendant, plaintiff appeals.

Affirmed.

London Yancey, Smith & Windham and J.K. Jackson, all of Birmingham for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

BOULDIN Justice.

The suit, in count 1, is to recover the total permanent disability benefit under a group policy of life and disability insurance.

The disability benefit clause defines the coverage in these words: "Said employee *** shall become totally and permanently disabled or physically or mentally incapacitated to such an extent that he or she by reason of such disability or incapacity is rendered wholly, continuously and permanently unable to perform any work for any kind of compensation of financial value during the remainder of his or her lifetime."

The cause was tried on an agreed statement of facts. These facts so far as essential to a decision of the question presented, may be summarized thus:

The master policy was issued to the Louisville & Nashville Railroad Company.

Plaintiff, Joe H. Page, was an employee insured under such policy. "For a number of years prior to June 15, 1931, plaintiff was continuously employed by the Louisville & Nashville Railroad Company as a brakeman, a switchman or flagman in the transportation department of said railroad."

In November, 1926, plaintiff got a cinder in his right eye, which inflicted an injury which finally developed, 1931, in a total and permanent loss of sight in that eye. He is thus rendered permanently and totally disabled to engage in his employment as a member of a train crew. "His left eye has normal vision and he can see plainly out of that eye. *** plaintiff is able, notwithstanding the loss of his sight in his right eye, to do other kinds of work other than work in the transportation department of a railroad as a member of a train crew after familiarizing himself with the duties of such position, and is able to hold a job in other gainful occupations such as crossing flagman or as special agent or as freight clerk or as baggage clerk or other railroad position which does not require the sight of both eyes after familiarizing himself with the duties of such position, and it is further agreed that he is acceptable to the railroads as such in his present condition. And it is further agreed that Mr. Page's eyesight has not and would not interfere with his performance of any kind of work which he would be otherwise able to perform and which does not require the use of both eyes to attend to, and that his physical condition is normal in every respect except the loss of sight in his right eye." Plaintiff is forty-seven years of age; "has followed the avocation of a flagman or brakeman or switchman on a railroad the majority of his working life and knows no other trade or profession, but plaintiff is of normal and average intelligence and can read and write and completed the fifth grade in public school."

In the recent case of Protective Life Ins. Co. v. Hale, 230 Ala. 323, 161 So. 248, 252, construing a disability clause of like import as that here presented, our former decisions were reviewed by the full court. It was declared the disability covered by the contract must not be merely occupational, but the insured "must be physically disabled from doing and performing the substantial features of any gainful occupation, within the range of his mental and educational capacity, with the required skill and accuracy of any such occupation."

In Protective Life Ins. Co. v. Wallace, 230 Ala. 338, 161 So. 256, 259, considered and decided by the full court at the same time as the Hale Case, substantially the same rule was stated in these terms: Inability "to do substantially all the material acts necessary to the prosecution of some gainful business or occupation, which the insured was qualified and capable of doing, and which requires substantially the same character of physical and mental training and effort." See, also, Equitable Life Assur. Soc. of United States v. Davis (Ala.Sup.) 164 So. 86.

Under the agreed facts above, the disability extends only to a limited field of employment, that of railway trainmen, who because of the peculiar public service in which they are employed, two good eyes are required. It is agreed other jobs in the railroad service are open to him upon his acquainting himself with the details of the new service. It is common knowledge that a man with one good eye, may, and often does,...