Protective Life Ins. Co. v. Wallace

• Decision Date: 28 March 1935
• Docket Number: 6 Div. 610
• Citation: 230 Ala. 338,161 So. 256
• Parties: PROTECTIVE LIFE INS. CO. v. WALLACE.
• Court: Alabama Supreme Court

161 So. 256

230 Ala. 338

PROTECTIVE LIFE INS. CO. v. WALLACE.

6 Div. 610

Supreme Court of Alabama

March 28, 1935

Rehearing Denied May 2, 1935

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action on a group policy of insurance by Frank Wallace against the Protective Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Cabaniss & Johnston and L.D. Gardner, Jr., all of Birmingham, for appellant.

London Yancey, Smith & Windham, of Birmingham, for appellee.

KNIGHT Justice.

The policy sued on in this case is what is known as a group policy, and was issued by the appellant, insuring the lives of the members of T.C.I. Insurance Club, Northwestern Division, of the Tennessee Coal, Iron & Railroad Company's employees. The plaintiff was an employee of said company and a member of the club, whose lives were insured by the appellant.

The testimony, upon which the case was tried, was without dispute in any particular.

It was agreed between counsel, upon the trial, that the group policy was in full force and effect up to December 31, 1931; that plaintiff was insured under said policy until December 31 1931. It was further agreed that on December 1, 1930, the plaintiff furnished to the defendant "due and adequate proof," as averred in the complaint, of his injuries, and that he had become totally and permanently disabled as alleged in the complaint "in the sense that he had made claim to that effect and furnished due proof in the sense that he had made due proof of a claim," but it was expressly stipulated that the defendant did not admit, but expressly denied that the "plaintiff is or had become totally and permanently disabled" from following a gainful occupation.

The evidence shows, without dispute, that the plaintiff on January 13, 1930, then forty-three years of age, was employed by the Tennessee Coal, Iron & Railroad Company as a "railroad train conductor--a freight train conductor and yard work." His conductor's job was confined to "freight train or yard work, work around in the yard, switching and going out and working the coal mines." With reference to his work the plaintiff testified: "The railroad work I had been doing was switching and conductor. I am familiar with switching work. A man doing switching work has to board moving trains, and get off of them while moving. And you have to jump from one car to another while the train is moving, and in working as a conductor you at times have to board trains and get off moving trains and move from one car to another while the train is moving just the same as a switchman."

Plaintiff had been engaged in this work with the Tennessee Coal, Iron & Railroad Company continuously since 1915, and was so engaged at the time the policy of insurance was issued to him.

On the night of January 13, 1930, while coupling the air hose between two cars, the plaintiff was knocked down under one of the cars, and dragged for some distance, hung by one of the bolts in the brake rigging. As a result of this accident, the lower part of plaintiff's right leg and his foot were crushed, the body of the first lumbar vertebra was collapsed, and there was a partial collapse of the body of the second lumbar vertebra. In addition, the transverse processes of the first lumbar vertebra were fractured on both sides, and the second fractured on the left side, disengaging the muscles from the proximal end of the bone; and three ribs on the left side were fractured. The right leg had to be amputated six inches below the knee, and at the time of the trial plaintiff was using an artificial limb. Plaintiff has suffered pain from these injuries from the day of the accident to the present time.

Plaintiff was carried to the hospital on the night of the accident and remained there until April 2, 1930.

In September following the accident, the plaintiff "took a job as night watchman with the Birmingham-Southern Railroad, but on account of his injuries and suffering, was able to hold the job only four days." He then had to give it up, and go back to the hospital.

There was other evidence in the case tending to show that plaintiff was permanently injured, and that his injuries made him a constant sufferer, especially if he undertook any work requiring physical exertion other than locomotion.

In May, 1931, the Birmingham-Southern Railroad Company gave the plaintiff a job flagging at the street crossing, at First avenue and Twelfth street. The company gave plaintiff the eight-hour period when the traffic required the least effort. This job requires but little work; no manual labor. The plaintiff has held this position from May, 1931, down to the time of the trial. The compensation received by plaintiff for this work has varied through the years. During the eight months that plaintiff worked during 1931, he received an average of $81.12 per month; during 1932 he received an average of $73.63; during 1933, his average pay was $62.30 per month; and at the time of the trial his average monthly earnings were $70. Plaintiff's testimony tended to show that he was unable to do work requiring real manual labor.

During the years he was employed by the Tennessee Coal, Iron & Railroad Company, his average monthly earnings were $187.20, approximately.

Plaintiff's education was limited to work in the grammar school through the sixth grade. He had never done any clerical work, or bookkeeping, or work of similar kind.

The provision of the policy under which plaintiff claims his right to recover in this case is: "If any member insured under this policy shall furnish this company with due proof that before having attained the age of 60 years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, the company will pay to such member in full settlement of all obligations hereunder as to such member's life, the amount of insurance in force hereunder on such member at the time of the approval by the company of the proofs as aforesaid. This amount will be paid either in one sum six months after proof of disability has been established or in installments as hereinafter provided, beginning immediately after proof of disability has been established."

The cause was tried by the court with a jury. There was verdict for plaintiff, and judgment accordingly. From this judgment the present appeal is prosecuted.

A number of errors are here assigned. Among them, the refusal of the court to give at the request of the defendant a number of special charges, including the general affirmative charge in its behalf, stated in different forms.

We are met at the outset of our consideration of the case with the insistence of appellee's counsel that, inasmuch as the special charges requested by, and refused to, the appellant do not appear in the bill of exceptions, we are not authorized to consider the same. Counsel cite as his authority for this contention the case of Choate v. Alabama Great Southern R.R. Co., 170 Ala. 590,54 So. 507.

There was a time when the Choate Case, supra, was an authoritative expression of the law on the subject, but in 1915 (Laws 1915 p. 815), the Legislature amended section 5364 of the Code of Alabama with reference to special charges moved for by either party, and since this amendment was adopted, we are permitted to review and revise the action of trial courts in the giving or refusal of special charges, whether these charges are incorporated in the record proper, or are set out in the bill of exceptions only; provided, of course, there is a bill of exceptions in the case sufficiently presenting the...