Travelers' Insurance Company v. Turner

• Decision Date: 22 May 1931
• Citation: 239 Ky. 191
• Parties: Travelers' Insurance Company v. Turner.
• Court: United States State Supreme Court — District of Kentucky

239 Ky. 191

Travelers' Insurance Company v. Turner.

Court of Appeals of Kentucky.

Decided May 22, 1931.

1. Insurance. — Where evidence tended to establish that one insured under employees' group policy was totally disabled while employed, he was entitled to have case submitted to jury, though insurer's evidence tended to contradict insured's evidence.

2. Trial. — It was for jury to determine facts from conflicting evidence.

3. Insurance. — "Total disability" in insurance policy does not mean absolute helplessness, but rather an inability to do substantially all material acts in transaction of insured's business in his customary and usual manner.

4. Insurance. — In action on total disability clause of life policy, whether insured was totally disabled while in employ of company insuring employee under group policy held for jury.

5. Insurance. — Construction of policy favorable to insured should be adopted.

6. Insurance. — Instruction held not erroneous as authorizing verdict for insured, even though jury did not believe insured was continuously totally disabled between time of accident and time of trial.

The instruction was almost verbatim in language of policy, and submitted to jury question whether they believed that insured had become wholly disabled by bodily injuries received on certain date, and would be permanently, continuously, and wholly prevented thereby for life from engaging in any occupation or employment for wages or profit.

7. Insurance. — Insurer denying liability under policy lost right of election to pay in annual installments.

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

TRABUE, DOOLAN, HELM & HELM for appellant.

W.W. THUM and W.T. McNALLY for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN

Affirming.

On August 12, 1919, the appellant issued to the Louisville Milling Company a group life insurance policy covering certain of the mill company's employees. The milling company was given what is known as the "master policy," and the employees who were insured were each given what is called a "certificate of insurance." The master policy provided payment of a principal sum upon the death of any of the employees insured and also provided for total disability benefits in the following language:

"If any employee insured under this policy shall furnish the company with due proof that he has before having attained the age of 60, become 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, the company will pay to him in full settlement of all obligations to him hereunder the amount of insurance then effective on his life either in a single payment or in annual instalments as hereinafter set forth as the employer may elect — no payment in either case to be made until six months after receipt of due proof of permanent total disability as aforesaid. The amount of each annual instalment shall be twenty-one and four-tenths per cent., of the amount of insurance on such life if payable in five instalments; eleven and six-tenths per cent. if payable in ten instalments; eight and four-tenths per cent. if payable in fifteen instalments; six and eight-tenths per cent. if payable in twenty instalments. Any instalments remaining unpaid at the death of the employee shall be payable as they become due to the beneficiary nominated by the employee, who shall have the right to commute such remaining payments into one sum on the basis of interest at the rate of three and one-half per cent. per annum."

The master policy further provided that "the insurance of an employee covered herein shall end when he shall leave the service of the employer or be dismissed therefrom." The certificate of insurance contained like clauses to those quoted from the master policy. On November 5, 1919, appellee, Arthur Turner, entered the employ of the Louisville Milling Company as a steam fitter. He was issued one of the certificates of insurance. On the 25th day of February, 1920, while the master policy and his certificate were in full force and effect, Turner received a severe injury to his head while engaged in his work for the milling company because of a sledge hammer slipping and fracturing his skull. He was off from work until March 19, 1920, when he returned and he continued in the service of the Louisville Milling Company until July, 1920, when he went to work at Camp Taylor at a slightly increased salary. He was there for about six weeks and then went to Camp Knox at a still greater increased salary. He stayed there for three or four weeks and then in November, 1920, went to work for the Henry Vogt Machine Company in Louisville where he stayed until June 11, 1921, when he left and went to live with his brother on a farm in Shelby county. Up until the time he went to live with his brother he was employed at all the places mentioned as a steam fitter. It is now admitted that Arthur Turner is totally disabled. To quote from the evidence of Dr. W.E. Gardner, a distinguished nerve specialist who examined Turner in 1924, he then had a stiffness and tremor which at that time was confined almost entirely to his right side, but which at the time of the trial had affected his whole body. He had a staring expression with a more or less of a masklike face. On the 18th day of November, 1929, Turner brought this suit against the insurance company to recover for his total disability. The insurance company defended on the theory that Turner's state of total disability did not occur while he was in the employ of the Louisville Milling Company, and hence was not covered by the policy upon which he sued. This issue was submitted to the jury, and they found a verdict in favor of Turner, and, from the judgment entered on that verdict, this appeal is prosecuted.

Appellant insists that under the evidence it was entitled to a peremptory instruction. In order to determine what merit there may be in this contention, it will be necessary only to consider the evidence for the appellee, and, if his evidence tended to establish that he was totally disabled while in the empoy of the Louisville Milling Company, he was entitled to have his case submitted to the jury, though the evidence for the appellant tended to contradict that for the appellee. In such state of case it would of course be for the jury to say what were the facts from the contradictory evidence adduced. The question of what is total disability within the meaning of such a phrase in a life insurance policy must be considered from two angles which may be designated as those of quantity and quality. To what extent must an assured be disabled from doing anything before he can be called totally disabled? This is the angle of quantity. What line or lines of work must he be unable to perform to...