Prudential Ins. Co. of America v. Tate

• Decision Date: 31 May 1961
• Docket Number: No. A-8266,A-8266
• Parties: PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. Millard C. TATE, Respondent.
• Court: Texas Supreme Court

Page 556

347 S.W.2d 556

162 Tex. 369

PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. Millard C. TATE, Respondent.

No. A-8266.

Supreme Court of Texas.

May 31, 1961.

Rehearing Denied June 28, 1961.

C. C. Renfro, Dallas, for petitioner.

Alvin Boyd, Clint A. Barham, Dallas, for respondent.

GRIFFIN, Justice.

This is a suit for recovery of benefits provided in an insurance policy issued to respondent by petitioner. This policy provided for certain benefits to be paid to respondent in the event he was disabled before reaching the age of 60 years. It was stipulated that respondent was under 60 years of age at the time he claimed he became totally and permanently disabled. Upon answer to special issues in favor of respondent by the trial jury, the trial court granted respondent's motion for judgment on the verdict for the sum of $2,922, due under the terms of the policy, and $350.64 as 12% penalty provided by statute for failure of the petitioner to pay upon demand by respondent. It was stipulated that respondent owed to petitioner the sum of $1,065.87 on a loan made against the policy. The trial court deducted this amount of the loan from the $3,272.64, and awarded respondent a judgment for $2,206.77, bearing interest at 6% from the date of judgment. On appeal this judgment of the trial court was affirmed. 344 S.W.2d 254.

We have considered respondent's motion to dismiss for want of jurisdiction and find it is without merit, and said motion is hereby overruled.

We hold that the lower courts were in error in determining the amount due under the terms of the policy and we reverse the judgments of both lower courts and remand the cause to the trial court.

Petitioner has three points of error in this Court. The first point contends that it was error for the trial court to overrule petitioner's motion for an instructed verdict because respondent admitted on cross-examination that he was able to perform the duties of (1) a timekeeper and (2) an effective salesman of construction material.

Petitioner's second point is that the trial court was in error in not submitting petitioner's requested special issues Nos. 1 and 2 whereby the jury could determine whether respondent was able to perform the kind of work set out in the first point.

Petitioner discusses these points together and we shall do likewise. Respondent testified that he could be a timekeeper if he knew how to operate a typewriter, and could sit at that job. He also testified that he could not operate a typewriter and that he could not walk or stand very long at a time and he did not believe his physical condition would permit his holding a timekeeper's job. The same testimony applied to the job of a material checker. He testified that he had been a carpenter or a construction superintendent all of his active working days and that he was no longer able to do either kind of work. Respondent thought he might be a construction material salesman, but he had never had any experience as a salesman, and knew of no jobs open in such occupation.

In the case of Commonwealth Bonding & Casualty Ins. Co. v. Bryant, 1922, 113 Tex. 21, 240 S.W. 893, which discusses whether or not an insured could recover for total disability under an accident policy providing that if the insured (a railroad conductor) sustained bodily injuries through accident which would immediately, continuously, and 'wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation,' the court said:

'The language of the policy is fairly and justly susceptible of the interpretation, which, we think, should be given to it, that the larger (total) indemnity was promised if the injuries rendered the insured substantially unable, in the exercise of ordinary care, to perform every material duty pertaining to his occupation. Fidelity & Casualty Co. v. Getzendanner, 93 Tex. 487, 52 S.W. 838, 55 S.W. 179, 56 S.W. 326; Fidelity & Casualty Co. v. Joiner (Tex.Civ.App.) 178 S.W. 808 (W. of E. ref.); North American Accident Ins. Co. v. Miller (Tex.Civ.App.) 193 S.W. 755 (W. of E. ref.); 14 R.C.L. 1316; 5 Joyce on Insurance (2d Ed.) § 3032(c); Foglesong v. Modern Brotherhood of America, 121 Mo.App. 548, 97 S.W. 240; Lobdill v. Laboring Men's Mutual Aid Ass'n, 69 Minn. 14, 71 N.W. 696, 38 L.R.A. 537, 65 Am.St.Rep. 542. * * *'

The Bryant case was discussed and approved in the case of Great Southern Life Ins. Co. v. Johnson, Tex.Com.App.1930, 25 S.W.2d 1093, 1094, which holding was approved by the Supreme Court. This case was a suit for recovery of total disability on an insurance policy. The policy was for $20,000 with a provision waiving annual premiums and agreeing to pay one-tenth of the face amount, $2,000 annually for ten years, upon satisfactory proof made by the insured of disability from disease or bodily injury 'so that he is and will be thereby permanently, continuously and wholly prevented from performing any work for compensation or profit or from following any gainful occupation.' On the issue of total disability, the court said:

'As said in Hefner v. Fidelity & Casualty Co., 110 Tex. 606, 160 S.W 330, 334, 222 S.W. 966 such a clause in the policy should be reasonably construed; a literal construction 'would require a complete loss of all physical power and mental capacity-in fact, it would scarcely happen that one could live and bring himself within the literal language of the contract.' While the policy in Commonwealth Bonding & Casualty Co. v. Bryant (Tex.Sup.) 240 S.W. 893, limited the character of disability to the performance of any and every kind of duty pertaining to his occupation, and here the policy is more comprehensive in that, 'if any work may be performed for compensation or profit, or any gainful occupation may be followed,' recovery is precluded, the rule announced by Judge Greenwood in that case applies here, viz.: 'The court will not give such a literal interpretation to the language of this contract * * * as to practically relieve the insurer of all obligations thereunder. Such would be the effect of a decision discharging plaintiff in error from all liability if defendant in error, after his injury, could do anything required of him as a railroad conductor.'

'A policy requiring payment for total disability ordinarily is not one of indemnity against loss of income but against loss of capacity to work. 6 Cooley's Briefs on Insurance (2d Ed.) 5536. 'Total disability' is necessarily a relative matter, and must depend chiefly on the peculiar circumstances of each case and on the nature of the occupation or employment and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith. Id. 5539.'

The court held that the fact that the insured had been elected justice of the peace and was serving in such capacity 'is not of itself conclusive that he is following such a 'gainful occupation' as relieves the company, nor that he is not...