Shipp v. Metropolitan Life Ins. Co.

• Citation: 111 So. 453,146 Miss. 18
• Decision Date: 28 February 1927
• Docket Number: 26317
• Court: United States State Supreme Court of Mississippi
• Parties: SHIPP v. METROPOLITAN LIFE INS. CO. [*]

111 So. 453

146 Miss. 18

SHIPP v. METROPOLITAN LIFE INS. CO. ^[*]

No. 26317

Supreme Court of Mississippi

February 28, 1927

Division B

INSURANCE. Recovery under policy providing compensation for total and permanent disability may be had only where disability is both total and permanent.

Under policy providing for compensation for total and permanent disability, recovery can be had only where disability is both total and permanent.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

Suit by J. E. Shipp against the Metropolitan Life Insurance Company. Judgment sustaining a demurrer to the declaration, and plaintiff appeals. Affirmed.

Judgment affirmed.

Morse & Bryan, for appellant.

The lower court erred in holding that under the averments of the declaration, appellant was not "totally and permanently disabled." He was totally disabled for a period of eight months; he was permanently disabled for all time, although the disability itself was not total after the eight months. Must the two conditions, namely total disability and permanent disability, so-exist through all time before the insured is entitled to receive the benefits provided for in his policies?

To so hold would assume that the parties by their contracts intended that the insured would be in a condition equivalent to a state of complete coma, with nothing but the bare spark of life within, before he could recover.

Contracts of insurance must be construed according to the true intention of the parties as determined by the courts and will be so enforced; yet, if the clauses appearing in insurance contracts are ambiguous or are susceptible of two constructions then, under the overwhelming weight of authority, that construction most favorable to the insured must be given it. See Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Eminent Household of Columbian Woodmen v. Bunch, 115 Miss. 512, 76, So. 540, Ann. Cas. 1918C 110; U. S. Fidelity & Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A. L. R. 605; Liverpool, etc., Ins. Co. v. Van Os, 63 Miss. 431, 56 Am. Rep. 810; Shivers v. Farmers Mut. Fire Ins. Co., 55 So. 965; Boyd v. Miss. Home Ins. Co., 75 Miss. 47, 21 So. 708.

It is true that two constructions have been given to similar causes as here presented, as is evidenced by the fact that two state courts of last resort have passed upon the question, and, seemingly, have reached opposite conclusions. The supreme court of Georgia in Penn Mutual Life Ins. Co. v. Milton (1925), 127 S.E. 140, 40 A. L. R. 1382, has decisively settled the matter in favor of appellant. The court of appeals of New York in Ginell v. Prudential Ins. Co. (1923), 237 N.Y. 554, 143 N.E. 740, has taken the contrary view. We confine our argument to that so ably written by the supreme court of Georgia in the above cited case.

Wells, Stevens & Jones, for appellee.

I. For authorities with reference to and limiting the rule of construction sought by appellant to have adopted by this court in reaching the conclusion that ambiguity existed which authorized and required the court to adopt the more favorable construction as against the insurance company and in favor of the insured, See:--32 C. J., page 1158; 14 R. C. L., page 926, paragraph 103; 1 Cooley, Law of Insurance, page 637; Guarantee Co. of North America v. Mechanic's Savings Bank, 183 U.S. 402, 46 L.Ed. 253; Interstate Business Men's Accident Ass'n v. Lewis, 257 F. 241; Maryland Casualty Co. v. England, 8th Circuit, 1924, 2 F.2d 795; Ponder v. Lamar Life Ins. Co., 6 F.2d 297; Miss. Mut. Ins. Co. v. Ingram, 34 Miss. 215; Co-Operative Life Ins. Co. v. Leflore, 54 Miss. 1; Am. Life & Accident Ins. Co. v. Nirdlinger, 113 Miss. 74; Continental Casualty Co. v. Hall, 118 Miss. 871 at 874; Hiatt v. Travelers Ins. Co. (La.), 33 A. L. R. 655.

II. The contract to be construed by this court provides insurance as expressly slated against total and permanent disability. What constitutes permanent and total disability? See Rhodes v. Ry. Passenger Ins. Co., 5 Lansing (N. Y.) 77; Hutchinson v. Supreme Tent K. M. etc., 22 N.Y.S. 803; Lyon v. Ry. Passenger Assurance Co., 46 Ia. 631; Pennington v. Pac. Mut. Life Ins. Co., 85 Ia. 468; Alvert v. Order of Chosen Friends, 34 F. 721; Supreme Tent of Maccabees v. King, 79 Ill.App. 145; Whitton v. Am. Nat'l Life Ins. Co., 87 S.E. 827; Buckner v. Jefferson Standard Ins. Co., 90 S.E. (N. C.) 897.

In the case at bar the plaintiff, when he took out this insurance, ran a store, and now after the expiration of his eight months of disability, which during that time he claimed to be total, is again merchandising. Therefore, in this case, at the expiration of eight months and now, the plaintiff is not prevented from "engaging in any occupation and performing any work for compensation or profit," but is engaged in the same occupation he was before his disability and is performing the same work for compensation and profit.

There is no stipulation here that after a certain length of time, a total disability will be presumed to be permanent. Therefore, no cases based upon such a provision have any bearing whatsoever on the case at bar.

The effort of counsel for appellant to place this court in the dilemma of being compelled either to hold with counsel for appellant and reverse this case, or to lay down the rule that no person is totally or permanently disabled until such person is in a state of coma and remains in a state of coma until death, is untenable.

In our view, a reasonable definition of permanent disability is such disability as will probably be permanent in the light of experience and medical science. See Fed. Life Ins. Co. v. Lewis, 183 P. 975.

OPINION

HOLDEN, P. J.

Appellant brought this suit...