Temples v. Prudential Ins. Co. of America
| Decision Date | 16 November 1934 |
| Parties | TEMPLES v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court February 23, 1935.
Appeal from Chancery Court, Franklin County; T. L. Stewart Chancellor.
Suit by Pete U. Temples against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appeals.
Affirmed.
Sizer Chambliss & Kefauver, of Chattanooga, for appellant Insurance Co.
Haynes & Green, of Winchester, for appellee Temples.
This was a suit by Pete U. Temples against the Prudential Insurance Company of America to recover on a group insurance policy, the master policy having been issued and delivered to his employer, the Nashville, Chattanooga & St. Louis Railway at Nashville, and the certificate on same having been issued to him providing for the payment of $2,000 for total and permanent disability; it having been alleged in the bill that the insured had become totally and permanently disabled by reason of accident and illness while this policy was in force. And he further sought to recover 25 per cent. statutory penalty because the defendant insurance company had failed and refused to pay him as provided in the policy after demand had been made upon it by the complainant as required by statute.
Defendant answered and denied that complainant was totally and permanently disabled, or that he became disabled while said policy was in force, and alleged that complainant's claim was denied, for the reason that his proofs of disability did not show that he was totally and permanently disabled within the meaning of the insurance policy while said policy was in effect.
A jury was demanded and the following issues were submitted:
(1) "Is complainant permanently and totally disabled to such an extent that he is by reason of such disability or incapacity rendered wholly, continuously and permanently unable to perform any kind of work for any kind of compensation of financial value during the remainder of his life?"
(2) "If complainant is so disabled when did such disability commence?"
(3) "Has the defendant Insurance Company received due proof of such disability as is required by the terms of the policy sued on?"
At the conclusion of all the evidence, defendant insurance company moved for a directed verdict, which motion was overruled.
The jury returned the following answers to the issues submitted: To the first issue they answered, "Yes." To the second issue they answered, "June 28, 1928, at the time he was working in the boiler." To the third issue they answered, "Yes."
Motion for a new trial having been overruled by the court and judgment entered in favor of complainant and against defendant in the sum of $2,000, defendant appealed to this court and has assigned errors as follows:
Pete U. Temples, an uneducated man, was employed by the Nashville, Chattanooga & St. Louis Railway, in 1927, as boiler maker's helper, at wages of $4.16 a day.
On February 1, 1927, certificate under group policy was issued to him, insuring him in the sum of $2,000 against total and permanent disability, etc. He testified that his health was good at that time.
In 1928, while he was removing a drawbar from an engine, he became ruptured. Other employees corroborate this fact. He was carried home, and went to bed, suffering a great deal. In three or four days he went back to work, although not able to work, because he was obliged to support himself and wife.
In January or February, 1929, he was again ruptured while removing an arch from an engine. He had to be carried home, where he stayed a week or two. His doctor advised an operation, but he was unable to pay the expenses of an operation. He went back to work, suffering all the time. He testified that his foreman, understanding his condition, called some other employee to help him when heavy things had to be lifted, so he was able to stay at the job at his same wages. This statement was corroborated by other employees.
On April 5, 1929, the railway company discharged him because of his drinking liquor. He testified that he would take a drink or two to relieve the pain he was suffering.
Several months later he applied to the railway company to be reinstated. He was sent to the company's doctor for examination. After the examination, the railway company wrote him the following letter:
Afterwards he worked for a few months as night watchman in the government relief work; operated a filling station for three months for compensation of about 75 cents a day; and worked in his brother's restaurant for four months for about a $1 a day.
Temples and his brother testified that his job in the restaurant was just a matter of charity; that he did not do any work. Temples says he did not do any work at the filling station, as he was not able.
Dr. A. P. Smith testified that Temples has a hernia in the right groin, an indirect inguinal hernia; that it is a dangerous condition, and he is not able to perform manual labor; that the condition could be cured by a major operation; that general anesthesia would be necessary in performing the operation, and there is always an element of danger in that; that such an operation would cost about $200; that a truss would give temporary relief if it could be properly fitted. He further testified that, when a person has hernia, there is some danger of locked bowel, which would result in death.
Notice of his disability was given the insurance company on November 12, 1931. They later denied liability on the ground that the proofs of disability showed that he was not totally disabled.
The master policy contains the following provision for total and permanent disability:
"If any person insured under this Policy 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 for any kind of 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 account of such insurance, while this Policy is in full force and effect and the said person is less than sixty years of age, the Company, upon receipt of due proof of such disability, will grant the following benefits."
The "Total and Permanent Disability" provision in the certificate is substantially the same.
It is undisputed that Temples sustained a hernia while in the employ of the railroad and while this policy was in force. But defendant insurance company contends that the fact that Temples worked at the same job after his injury as before, for six or eight months, and until discharged by the railway company, and afterwards worked in a restaurant for four months, operated a filling station for three months, and was night watchman, conclusively shows that he was not totally disabled.
Dr. Smith testified that he had hernia and that he was totally and permanently incapacitated to do manual labor. Temples testified that, while holding his same job at the railroad, he only "waited on" the boiler maker; that the boiler maker, knowing his physical condition, did not ask him to lift heavy things, which had formerly been his job, but called other employees to help him when heavy pieces of equipment had to be moved; that he did practically nothing in his brother's restaurant, but his brother kept him there as an act of charity; and that he did not have to do any work at the filling station, there were boys to do the work.
Temples testified that he was not able to work since he was ruptured, but had to work or starve.
We are of the opinion that there was sufficient evidence on the question of his disability to carry the case to the jury. Metropolitan Life Insurance Company v. Noe, 161 Tenn. 335, 31 S.W.2d 689; Kane v. Metropolitan Life Insurance Co.
(Mo. App. 1934) 73 S.W.2d 826, 829; Horn's Administrator v. Prudential Insurance Company (1933) 252 Ky. 137, 65 S.W.2d 1017; Prudential Insurance Company v. Downs, 251 Ky. 208, 64 S.W.2d 902.
Total disability and permanent disability are issues of fact to be determined on the evidence adduced in each individual case. Metropolitan Life Insurance Co. v. Noe, supra.
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