Prudential Ins. Co. of America v. Davis

• Decision Date: 03 November 1934
• Citation: 78 S.W.2d 358
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. DAVIS.
• Court: Tennessee Supreme Court

78 S.W.2d 358

PRUDENTIAL INS. CO. OF AMERICA v. DAVIS.

Court of Appeals of Tennessee, Eastern Section.

November 3, 1934.

Certiorari Denied by Supreme Court January 25, 1935.

Appeal in Error from Circuit Court, Unicoi County; D. A. Vines, Judge.

Action by Wesley P. Davis against the Prudential Insurance Company of America. From a judgment on a verdict for plaintiff, defendant appeals in error.

Judgment reversed, verdict set aside, and action dismissed.

Williams, Miller & Winston, of Johnson City, for plaintiff in error, Insurance Co.

H. D. Erwin and Fred D. Booth, both of Erwin, for defendant in error, Davis.

FAW, Presiding Judge.

Pursuant to an opinion heretofore handed down and filed, a judgment was entered in this cause striking the case from the docket of this court, for the reason that the record did not show a verdict, judgment, or appeal, and therefore did not disclose the facts necessary to vest this court with jurisdiction of the case.

Thereafter, in due season, the Prudential Insurance Company of America filed a petition for a rehearing, and for leave to suggest a diminution of the record so as to supply a transcript of certain entries on the minutes of the circuit court of Unicoi county, which entries, it was alleged in the petition and shown by satisfactory evidence, had been, by inadvertence and oversight of the clerk of said circuit court, omitted from the transcript of the technical record, or record proper, filed in this court.

The petition is accompanied by a duly certified transcript of the aforesaid minute entries, which show that this case was tried to a jury and the jury found all of the issues in favor of the plaintiff (Wesley P. Davis) and against the defendant (Prudential Insurance Company of America), and that plaintiff is entitled to recover from the defendant the sum of $3,000, payable in twenty-four equal monthly installments, commencing on January 4, 1932; that the defendant moved the court for a new trial, which motion was entered on the minutes of the court; that the court overruled said motion, and judgment of the court was pronounced and entered upon, and in accordance with, the verdict of the jury; that the defendant excepted to the action of the court in overruling its motion for a new trial and rendering judgment against it, and prayed an appeal in the nature of a writ of error to this court, which appeal in error was granted by the trial court and time was allowed the defendant in which to file proper appeal bond and a bill of exceptions.

The record shows that an appeal bond and a bill of exceptions were seasonably filed by the defendant.

The petition for a rehearing is granted, and our former judgment striking the case from the docket is vacated and set aside. The supplemental transcript exhibited with the petition will be filed as a part of the record in this court, and the judgment of the circuit court, so far as challenged by the assignments of error, will be reviewed on the record.

This suit was brought by Wesley P. Davis to recover the "total and permanent disability" benefits provided by a group insurance policy issued to the Clinchfield Railroad Company and a certificate thereunder issued to the plaintiff below (hereinafter called plaintiff) by the Prudential Insurance Company of America, the defendant below (and hereinafter called defendant).

Plaintiff was forty-two years of age at the time of the trial below in August, 1933. He was employed continuously by the Clinchfield Railroad Company as a brakeman for fourteen years, which period of active service covered the date of the issuance of the aforesaid group policy and certificate, and thereafter until February 7, 1931, on which latter date plaintiff was injured by falling from a railroad car, and has not worked for the railroad company since that time.

Plaintiff states in his testimony that the fall above mentioned broke his hip "all to pieces — crushed it."

Dr. Hankins, who X-rayed plaintiff's pelvis shortly after plaintiff was injured, describes plaintiff's injury (in more technical language) as "a fracture of the wing of the right ilium."

Plaintiff paid the premiums stipulated in the policy "to the first of the year 1932," and on January 4, 1932, furnished "proofs" of disability to defendant; but defendant declined to accept the proofs thus furnished as "proof of permanent disability" and denied liability to plaintiff on the policy.

The certificate issued to plaintiff, pursuant to and in accordance with the terms and provisions of the group policy, provides for the payment to the named beneficiary (the wife of plaintiff) of the sum of $3,000 upon the death of the insured "from natural causes," and also provides for the payment to the beneficiary of the sum of $6,000 upon the death of the insured "by accident as defined in said policy," and further provides for the payment of certain specified "special disability benefits"; but neither the death benefit, nor the accident benefit, nor the "special disability benefits" are involved in the present controversy.

Plaintiff is suing in this case to recover $3,000 for an alleged "total and permanent disability," and is basing his action upon certain stipulations of the insurance contract contained in the "certificate" issued to him by the defendant, which stipulations are as follows:

"If the said employee, while less than sixty years of age, and while the insurance on the life of said employee under said policy is in full force and effect, 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 amount of insurance payable at death from natural causes will be paid to said employee in monthly "installments during two years, the first installment to be payable immediately upon receipt by the Company of due proof of such disability or incapacity; in accordance with the provisions of said policy. The disability benefits will be granted subject to cessation, in accordance with the provisions of the policy, should such disability or incapacity prove to be temporary and not permanent."

The "total and permanent disability" provisions of the group policy are substantially the same as above quoted from the certificate.

The "provisions of the policy" for "cessation" of "disability benefits," to which reference is made in the above quoted stipulations of the certificate, are as follows:

"Proof of Continuance of Disability. — Notwithstanding the acceptance by the Company of proof of total and permanent disability, the said person, upon demand by the Company from time to time, for the purpose of verifying that such disability is actually permanent and not temporary, shall furnish due proof that he (or she) actually continues in the state of disability defined above. In case of failure to furnish such proof, no further proportional parts of the premium on account of said person's insurance shall be waived and no further monthly installments shall be paid on account of such disability, and any insurance on the life of said person then remaining under this Policy may continue to be renewed subject to the terms of the Policy, but if the said person be no longer in the employ of the Employer or if this policy be no longer in force the said person may, in respect of such reduced amount, make use of the privilege set forth under the heading `Provisions as to Employee's Certificate and Conversion of Individual Insurance.'"

However, the provision for "cessation" of disability benefits just quoted does not affect the issues in this case. Conley v. Pacific Mutual Life Insurance Company, 8 Tenn. App. 405, 413; Metropolitan Life Insurance Company v. Noe, 161 Tenn. 335, 31 S.W.(2d) 689; Metropolitan Life Insurance Company v. Blue, 222 Ala. 665, 133 So. 707, 79 A. L. R. 852, 857.

At the close of the plaintiff's evidence in chief below, the defendant moved the court to peremptorily instruct the jury to return a verdict in favor of the defendant upon the following grounds, to wit:

"First — There is no evidence which would support a verdict in favor of the plaintiff and against the defendant.

"Second — The plaintiff is able to engage in an occupation and/or perform work for compensation of financial value.

"Third — All of the testimony shows that the plaintiff has since the cancellation of the policy sued on and since the alleged disability, performed work for compensation of financial value.

"Fourth — There is no evidence showing that the plaintiff, while the contract sued on was in force, became totally and permanently disabled or physically or mentally incapacitated to such an extent that he by reason of such disability or incapacity is rendered wholly, continuously and permanently unable to perform any work for any kind of compensation of any financial value for the remainder of his lifetime."

The trial court overruled the above motion for a directed verdict, with the following statement:

"There is some evidence to carry to the jury. I feel like there is just enough evidence to carry it to the jury. Of course, I see Mr. Davis walking around here and I know exactly how you gentlemen feel about it; but those are matters the jury will have to pass on."

The motion was renewed at the close of all the evidence, and was then overruled by the court without comment. The motion for a new trial, made after the verdict of the jury (which latter motion was based, in part, upon the overrulement of the motion for peremptory instructions), was also overruled without comment by the trial judge.

The determinative question for decision here is whether there was material evidence before the jury from which it could be found that, as a result of his aforesaid injury on February 7, 1931, plaintiff is totally...