Smithpeters v. Prudential Ins. Co. of America
| Decision Date | 22 December 1934 |
| Docket Number | 1. |
| Parties | SMITHPETERS v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court. March 19, 1935.
Appeal in Error from Law Court of Johnson City; D. A. Vines, Judge.
Action by Sam Smithpeters against the Prudential Insurance Company of America. From a judgment dismissing his suit, plaintiff appeals in error.
Reversed and remanded for new trial.
Thos P. Gore and George N. Barnes, both of Johnson City, for plaintiff in error.
Williams Miller & Winston, of Johnson City, for defendant in error.
Plaintiff in error, Sam Smithpeters, has appealed to this court from a verdict and judgment in the law court at Johnson City dismissing his suit against defendant in error, Prudential Insurance Company, for disability benefits alleged to be owing him under a group policy and certificate. The policy and certificate provide for benefits in case the certificate holder becomes totally and permanently disabled while employed by Miller Bros., and while the policy is in force and effect.
The first assignment is that the court erred in refusing a new trial because there is no evidence to support the verdict.
Plaintiff in error entered the employ of the group policyholder, Miller Bros., in 1928, and worked there until April, 1932, when he claims to have become totally and permanently disabled by reason of a heart ailment, high blood pressure, and kidney trouble. No premiums were paid after April 30, 1932.
While the medical evidence is in agreement that, at the time the case was tried on November 3, 1933, plaintiff in error was totally and permanently disabled, and while the testimony of lay witnesses, including plaintiff in error, strongly corroborates the medical testimony in such way as to leave no doubt in our minds that he was both totally and permanently disabled at that time, there is some evidence in the record from which the jury could have reached the conclusion that that condition antedated the issuance of the certificate on June 5, 1929.
It is the contention of defendant in error that plaintiff in error's disability did, in fact, occur before the issuance of the certificate, and, therefore, is not covered by the policy and certificate.
There is convincing proof in the record that plaintiff in error was not in good health at the time of the issuance of the policy. He admits that he was having "fainty spells" and was really not able to work when he went to work for Miller Bros.; yet the fact remains that he did work there for about four years. It is not a question of when he became diseased or when he became partially disabled. The vital question is, When did he become totally and permanently disabled by reason of disease?
This was a question for the jury to determine, and there is evidence to support either the view that he became totally and permanently disabled before the policy was issued, or that this condition did not occur until after the policy was issued but before April 30, 1932.
Obviously, if plaintiff in error became totally and permanently disabled before the policy was issued, he could not recover because he is indemnified only against total and permanent disability occurring while the policy is in effect. The certificate so provides, and this is a reasonable and binding provision of the contract. Dees v. National Casualty Co., 17 Tenn.App. 183, 66 S.W.2d 603; Williams v. Insurance Co., 163 Tenn. 262, 43 S.W.2d 215.
Counsel for plaintiff in error insist that the company is precluded from raising the contention that plaintiff in error became totally and permanently disabled prior to the issuance of the certificate by reason of the incontestable clause in the policy. The ineptitude of this contention is apparent when it is remembered that the company is not seeking to rescind the policy or defeat a recovery under it by reason of any fraud, misrepresentation, or warranty upon the part of insured at the time the certificate was issued. Its insistence is that the policy does not cover any disability except such as occurs while the policy is in force and while insured is employed by the group policyholder. This, as we have seen, it may lawfully do, by way of limiting the risk assumed.
There was some material evidence from which the jury could have reached the conclusion that insured became totally and permanently disabled before the certificate was issued, and the first assignment must, therefore, be overruled.
What has just been said is responsive to assignment No. 2, and it is, likewise, overruled.
Assignment of error No. 3 levels a twofold criticism at a portion of the court's charge: (a) That he committed error in charging the jury that the disability alleged must have originated after the policy was issued and while it was in force and effect; and (b) that the court's definition of total and permanent disability was too restricted to give the jury a proper guide under the law as declared by the Supreme Court in the case of Pacific Mutual Life Insurance Co. v. McCrary, 161 Tenn. 389, 32 S.W.2d 1052.
The first of these criticisms has already been disposed of, in principle, in disposing of assignment No. 1.
The second criticism is not well made and must, be overruled for the reason that the learned circuit judge, in another portion of the charge, defined total disability as follows;
The charge, taken as a whole, defines total and permanent disability substantially in accord with the law in this state, and we cannot see that it was prejudicial, in the respect complained of under assignment No. 3.
Assignment No. 4 is without merit, and is overruled.
Under assignment No. 5, plaintiff in error complains of the following charge of the court:
"If it appears from the proof, and you so find, or if the proof is evenly balanced on that, that he was able to and did work after this policy was cancelled, during July and August and carried on and did his work in the usual and customary way, and that he received financial remuneration for his services for working and during July and August, and if in this year he was able and did work 99 hours in May on the road of this county and a substantial number of days in April and that he worked 80 hours in the month of July and 80 hours in the month of August and he received financial remuneration for his work in...
To continue reading
Request your trial