Travelers Ins. Co v. Brinkley

• Decision Date: 12 March 1936
• Parties: TRAVELERS INS. CO. v. BRINKLEY.
• Court: Virginia Supreme Court

184 S.E. 225

TRAVELERS INS. CO.

v.BRINKLEY.

Supreme Court of Appeals of Virginia.

March 12, 1936.

Error to Circuit Court of City of Portsmouth.

Action by Joliff S. Brinkley against the Travelers Insurance Company. To review a judgment for plaintiff, defendant brings error.

Reversed and judgment rendered.

Argued before HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.

Hughes, Little & Seawell, of Norfolk, for plaintiff in error.

Venable, Miller, Pilcher & Parsons, of Norfolk, and Malcolm G. Robinson, of Portsmouth, for defendant in error.

GREGORY, Justice.

An action instituted by notice of motion by Joliff S. Brinkley against the Travelers Insurance Company resulted in a verdict and judgment in his favor for $2,000, the amount for which he sued. To this judgment a writ of error has been granted.

The cause of action arose against the Travelers Insurance Company by virtue of a group insurance policy issued by it to the Norfolk & Portsmouth Belt Line Railroad Company by whom Brinkley was employed. A certificate of insurance was issued by the insurance company to Brinkley by reason of that employment. This certificate contained the following pertinent paragraph:

"If any employee shall furnish the company with due proof that while insured under this policy and before having attained the age of sixty, he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the company will waive further payment of premium as to such employee and pay in full settlement of all obligations to him under this policy the amount of insurance in force hereunder upon his life at the time of the receipt of due proofs of such disability either in one amount or in a fixed number of installments chosen by him, the first installment to be paid immediately upon receipt of due proofs of such disability."

While this insurance contract was in full force and effect, Brinkley sustained a very serious injury to his left hand. As a result of this injury, the tendons on the back of his hand have become imbedded in scar tissue so that it is now impossible for him to close his hand or to grip anything with that hand. He also suffers from pain when the back of his hand is touched due to the fact, as testified to by his doctor, that the end of a nerve had been fastened in this scar tissue. However, the testimony shows that this pain can be relieved by a slight operation.

Brinkley had been an employee of the Belt Line Railroad for a number of years and was a conductor at the time of the injury. He first began in the railroad service in 1912 as a yard clerk, then became a brakeman, and had been a conductor for the greater part of the time since the World War. He is thirty-six years of age, and except for the injury to his left hand, his health is not otherwise impaired.

The learned judge of the trial court held the view and in effect so instructed the jury that the language of the policy, "wholly disabled by bodily injury or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, " should be construed to mean and had reference to the vocation or calling in which the insured was engaged at the time he became disabled, and if he was disabled to the extent that he is prevented from following his usual occupation, he has a total permanent disability within the meaning of the policy.

There are four assignments of error, all of which draw in question the correctness of this construction of the policy by the court under the facts in this case.

The testimony shows...