Prudential Ins. Co. of America v. Harris

• Decision Date: 24 April 1934
• Citation: 254 Ky. 23,70 S.W.2d 949
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. HARRIS.
• Court: Kentucky Court of Appeals

70 S.W.2d 949

254 Ky. 23

PRUDENTIAL INS. CO. OF AMERICA v. HARRIS.

Court of Appeals of Kentucky

April 24, 1934

Appeal from Circuit Court, Greenup County.

Action by Harry Harris against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appeals.

Affirmed.

R. W Keenon, of Lexington, for appellant.

Waugh &amp Howerton, of Ashland, for appellee.

STANLEY Commissioner.

On February 7, 1930, the appellant, Prudential Insurance Company of America, insured the life of the appellee, Harry Harris in the sum of $5,000. The policy contained a total and permanent disability benefit clause, by which, in consideration of an extra premium, which was included in the payment of the total premium charged for the policy, the appellant agreed to pay to the appellee a monthly income of $10 for each $1,000 of the amount of insurance in the event of appellee's total and permanent disability before the age of 60. The provisions of the policy as to total and permanent disability are as follows: "If the insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work of any kind for compensation of financial value during the remainder of his (or her) lifetime, and if such disability shall occur at any time after the payment of the first premium on this policy, while this policy is in full force and effect and the insured is less than sixty years of age, and before any non-forfeiture provisions shall become operative, the company upon receipt of due proof of such disability, will grant the benefits hereinafter specified dating from the commencement of such disability, or if the proof submitted shall not be due proof of the permanency of such disability but shall be due proof that total disability as defined exists and has existed continuously during a period of not less than ninety days immediately preceding receipts of such proof, such disability shall be presumed to be permanent and the company will grant the said benefits dating from the end of ninety days from the commencement of the period of total disability which has existed continuously to the date of such proof."

In another clause the company waived the payment of any premium or premiums which came due during such disability. The premium was payable in quarterly installments, and the appellee paid the installments from the date of the policy to February 7, 1931.

At the time the policy was issued, he was employed by the Chesapeake & Ohio Railway Company as a locomotive steam pipe fitter and had been so employed for approximately fifteen years. He quit work on November 9, 1930, and shortly thereafter furnished to the appellant proof of disability. The company paid him disability benefits at the rate of $50 a month from February 10, 1931, to July 10, 1931, when it ceased making the payments and denied any further liability, claiming that the appellee was not totally and permanently disabled within the meaning of the policy.

On February 2, 1932, Harris brought this suit in the Greenup circuit court, alleging that he became permanently and totally disabled on November 9, 1930, and that he had been wholly, continuously, and permanently unable to engage in any occupation or perform any work of any kind for any kind of compensation of financial value, that he was suffering with colitis accompanied by spastic diverticulosis, which had at all times since November 9, 1930, rendered him permanently and totally disabled within the meaning of the policy, and that such condition was permanent and that he would thereafter be wholly, continuously, and permanently unable to engage in occupation or perform any work for any kind of compensation of financial value during the remainder of his life. He alleged seven monthly payments of $50 each had accrued since July 10, 1931, when appellant ceased the sick benefit payments, and he prayed for a judgment for $350 with interest on each $50 installment from the time it became due under the terms of the policy. He further prayed "that it be adjudged by the court that he is permanently and totally disabled within the meaning of said policy and that said payments shall continue at the rate of $50.00 per month so long as the plaintiff is so disabled." On the trial of the case the jury returned a verdict for the plaintiff and the following judgment was entered: "It is therefore considered, ordered and adjudged that the plaintiff, Harry Harris, is totally and permanently disabled within the meaning of the policy sued on herein, and has been so disabled since July 10, 1931, and it is ordered and adjudged that he recover of the defendant the sum of $600.00 being the monthly installments due under said policy from the 10th day of July, 1931, until this date, and he will recover interest on said monthly installments as they became due from time to time since July 10, 1931, and his costs herein expended. This judgment is without prejudice to the future rights of the parties on the status of the plaintiff hereafter, under the provisions of said policy."

On this appeal the following grounds are relied upon for a reversal of the judgment: (1) The court erred in overruling defendant's motion for a directed verdict; (2) the instructions are erroneous; and (3) the judgment is erroneous and excessive in amount and unsupported by the pleadings.

Appellee testified that he was employed by the Chesapeake & Ohio Railway Company as a locomotive steam pipe fitter from June 14, 1914 to November 9, 1930, and that he stopped work on account of sickness. He began having intestinal trouble in October, 1930, and it had become so acute on November 9, 1930, that he was unable to work longer. He could eat very little and then only specially prepared food, and had lost considerable weight. His condition did not improve, and at the time of the trial in July, 1932, he was still unable to work. He was treated by Dr. C. M. Vaughan and Dr. C. E. Johnson. Dr. Vaughan testified that he examined appellee in November, 1930, and put him to bed for about six weeks. He described appellee's condition as follows: "He has chronic colitis with a chronic infection of the ileum and of the mucous membrane with a distention of the different parts of the bowel that is like little pouches." He further testified that the entire colon was affected, that the condition was permanent, and that the appellee would never be able to do manual labor. Dr. Johnson testified that appellee's condition was permanent and that he would never be able to perform hard labor. Dr. J. R. Cooper, who had been a specialist for fifteen years in X-ray diagnosis, made an X-ray examination of appellee in November, 1930, and again in November, 1931, the last time at the request of appellant. He described the condition he found in November, 1930, as follows: "The condition revealed was that of a mucous or spastic colitis, that is, a contracted condition of the colon, which was found in this case to be extreme, that the muscle fiber contracted down, a narrowing of the ileum of the colon. I made an examination of the fiber which shows the extensive packing or false declivitous so that this food was cut off by spasms." He found appellee in substantially the same condition in November, 1931, and in his opinion appellee's condition was permanent, or would become permanent, and he was unable to do any manual labor.

In its most favorable aspect to appellant, the general effect of all the evidence may be said to be that the insured was not disabled from performing some kind of work, but that he was not physically able to hold a regular job or do manual labor, or particularly to do the work of a pipe fitter, which was his usual vocation or accustomed occupation. There was substantial evidence to the contrary, but it was not so conclusive as to constrain this court to hold that the verdict, in accordance with the claims of the plaintiff, was flagrantly against the evidence under the terms of the policy as defined in the instructions.

The contention that the policy had lapsed because of the nonpayment of premiums rests upon the same ground, for, as stated, the company had agreed to waive their payment during the continuance of such disability.

The general tenor and effect of the instructions offered by the plaintiff is that the jury should find for the insurance company unless they believed from the evidence that the plaintiff had been and was permanently disabled to such extent as to render him unable to engage in any work or employment of any kind for compensation of financial value even though he was unable to do the work of a pipe fitter. Those instructions were refused, but, in the instruction given by the court, the jury was required to find that the plaintiff was disabled substantially as de fined and limited by the language of the policy. However, the court defined that language by this instruction: "The court instructs the jury that the words 'totally and permanently disabled to such an extent that he is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his life time' mean inability to do and perform in a reasonable and practical way all material acts in the pursuit of the occupation or employment of the insured, but do not mean absolutely helpless or entire physical disability."

The correctness of that instruction is the crucial question.

The case therefore presents for interpretation the phrase in the policy that indemnity would be paid if the insured should be rendered "wholly, continuously...