Principi v. Columbian Mut. Life Ins. Co.

• Decision Date: 13 July 1935
• Citation: 84 S.W.2d 587,169 Tenn. 276
• Parties: PRINCIPI v. COLUMBIAN MUT. LIFE INS. CO.
• Court: Tennessee Supreme Court

84 S.W.2d 587

169 Tenn. 276

PRINCIPI v. COLUMBIAN MUT. LIFE INS. CO.

Supreme Court of Tennessee.

July 13, 1935

Appeal from Chancery Court, Shelby County; D. W. DeHaven, Judge.

Action by Jake Principi against Columbian Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings certiorari.

Certiorari denied.

Bates Shea & Frazer, of Memphis, for appellant.

Adams Donelson & Pope, of Memphis, for appellee.

McKINNEY Justice.

Suit on two policies providing indemnity for total and permanent disability from disease, accident, or sickness "as shall render the Assured helpless to the extent of permanently preventing him from following or directing any gainful labor trade, occupation, business or profession." Complainant has engaged in the occupations of operating a grocery store automobile mechanic, and truck driving, all of which require the substantial use of his legs. He is not qualified to perform any other trades or occupations. In his applications for the policies sued on he gave his occupation as that of a retail grocer.

As the result of an automobile accident on January 28, 1933, complainant's right leg was crushed, causing an inflammation that had continued to the date of the trial on April 17, 1934. He has undergone two operations for the removal of dead bone, and without another serious operation there is no prospect for a recovery, and even then the physicians are unable to assure a recovery. These physicians testify that complainant is unable to do any work at the present time, and one of them states that he considers complainant totally and permanently disabled to do any work where he has to use his leg. It is further established by the evidence that as a result of said accident complainant's right arm is permanently impaired 50 per cent. We think the evidence was sufficient to take the case to the jury under the rule announced in Metropolitan Life Ins. Co. v. Noe, 161 Tenn. 335, 31 S.W.2d 689.

In his charge to the jury, the chancellor said:

"The question here is whether this complainant is totally and permanently disabled from following or directing his usual or customary business, or occupation, or any gainful business or occupation, for which he is qualified and fitted, in the usual and customary way."

It is insisted by defendant that the terms of the policies did not justify the chancellor in incorporating in his charge the phrase "for which he is qualified and fitted." This presents a question that has not been heretofore directly passed upon by this court, although it has been adjudicated by numerous other courts. While there is some conflict in the decisions, the great weight of authority, particularly in the more modern cases, supports the view expressed by the chancellor in the excerpt from his charge quoted above.

A most instructive case upon the subject is that of Hurley v. Bankers' Life Co., 198 Iowa, 1129, 199 N.W. 343, 37 A. L. R. 146, in which the Supreme Court of Iowa had under consideration a policy providing indemnity where the insured is "prevented permanently, continuously, and wholly from performing any work or following any occupation for compensation or profit." The insured was a farmer who had never had any other occupation. He had no education beyond that acquired in the public schools through the third grade. He was kicked on the leg by a horse. Three amputations were necessary, following the injury, resulting in leaving a stump of the leg five inches in length and the bone so near the end of the stump that an artificial limb could not be used, and insured was compelled to use crutches. He could drive a team, and do some chores on the farm, such as any man with one leg could do. In denying a recovery, the court, in a four to three opinion, held that the great weight of authority was contrary to their decision, and indicated that if it were a question of first impression they might reach a different conclusion, but decided that they were bound by their former decision in Lyon v. Railway Pass. Assur. Co., 46 Iowa, 631, decided in 1877.

In Taylor v. Southern States Life Ins. Co., 106 S.C. 356, 91 S.E. 326, L. R. A. 1917C, 910, it was held that a small farmer sixty years old, illiterate and wholly dependent for support upon his physical exertions, comes, when stricken with disease so as to be unable to do farming, within the provisions of an insurance policy maturing it when insured becomes "physically disabled, and wholly, continuously, and permanently incapacitated from carrying on any gainful occupation," although he is able to drive a team, feed cows, run a small dairy business with the help of a boy, and make arrangements for farm purchases.

In Foglesong v. Modern Brotherhood (1906) 121 Mo.App 548, 97 S.W. 240, 241, followed on subsequent appeal in Id. (1908) 129 Mo.App. 655, 108 S.W. 1199, where a benefit certificate provided for indemnity in case of "permanent and total disability of said member, which renders him unable to carry on or conduct any vocation or calling." The court refused to construe the provision to mean that no recovery could be had if insured was able to carry on any vocation whatever. It was there said: "But we are unwilling to adopt such a doctrine, the effect of which would be, practically, to reduce all such contracts to nullities, and to make them the instruments of extracting dues from policy holders without creating any liability on the part of the insurers. Common knowledge of the occupations in the lives of men and women teach us that there is scarcely any kind of disability that prevents them from following some vocation or other, except in cases of complete mental inertia. We have examples of persons without hearing and without sight following a vocation--some without feet, and some without hands, engaged in business. The achievements of disabled persons are seemingly marvelous. Under defendant's theory, the plaintiff might embark in the peanut trade or follow the business of selling shoe strings or lead pencils, or follow some similar calling; in which instances, under the rule invoked, there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties. In order to carry out the intent of the parties, it is our duty to disregard the broad language used which would have the effect to defeat the purpose of the contract and...