Twilleager v. North American Acc. Ins. Co.

• Decision Date: 16 December 1964
• Citation: 397 P.2d 193,239 Or. 256
• Parties: Edwin A. TWILLEAGER, Appellant, v. NORTH AMERICAN ACCIDENT INS. CO., Respondent.
• Court: Oregon Supreme Court

Page 193

397 P.2d 193

239 Or. 256

Edwin A. TWILLEAGER, Appellant, v. NORTH AMERICAN ACCIDENT INS. CO., Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 14, 1964.

Decided Dec. 16, 1964.

John Toran, Jr., Portland, argued the cause and submitted the brief for appellant.

Roland F. Banks, Jr., Portland, argued the cause for respondent. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN, and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff from a judgment which the circuit court entered in favor of the defendant after a jury had returned a verdict for the plaintiff. The court entered judgment for the defendant notwithstanding the verdict: see ORS 18.140(2). This appeal challenges the judgment thus entered.

The action is based upon a policy of health and accident insurance which the defendant issued to the plaintiff January 21, 1958. The policy was in full force and effect at all times material to this case. By the terms of the policy defendant agreed to pay stated sums of money to the plaintiff by way of indemnity for either total or partial disability, suffered as a result of accidental injury, and which prevented the plaintiff from carrying out his duties as a custodian's helper at Portland's Jefferson High School.

While operating an automobile on January 18, 1962, plaintiff was involved in an accident as a result of which he sustained, inter alia, an injury to his left knee. Defendant paid to plaintiff, or tendered into court, sums intended to satisfy the full amount of benefits for partial disability provided in the policy. Plaintiff contended that he was totally disabled and brought this action to recover the larger benefits provided therefor.

The only assignment of error challenges the propriety of the trial court's order which granted judgment notwithstanding the verdict. The only issue at trial was whether the plaintiff was entitled to benefits for total disability as that condition is defined in the policy. The issue before us is whether there was substantial evidence, viewed in the light most favorable to the plaintiff, sufficient to established that the injury to plaintiff's left knee was such as to totally disable plaintiff from engaging in 'any and every kind of business or labor pertaining to his occupation.'

Part III of the policy, pertinent to this appeal, provides as follows:

'Accident Indemnity

'When injury, which does not cause any of the Specific Total Losses enumerated in Part II hereof, shall within twenty days from the date of accident continuously totally disable the Insured from engaging in any and every kind of business or labor pertaining to his occupation, the Company will pay:

'Total Disability

'(a) For the period of such disability, not exceeding sixty months, at the rate of the Monthly Indemnity shown in Policy Information;

'Partial Disability

'(b) Or if injury shall within twenty days from date of accident or immediately following a period of total disability prevent the Insured from performing one or more of the important daily duties of his occupation, the Company will pay for the period of such partial loss of time not exceeding six months at the rate of One-Half the Monthly Indemnity shown in Policy Information.

'Indemnity under this Part III will not be paid in excess of the time the Insured is under the regular care of a legally qualified physician or surgeon.'

The monthly indemnity shown in the 'policy information' is $150, and plaintiff's occupation is classified by the policy as 'School Custodian.'

As a general rule, the extent of disability suffered by an insured is a question for the jury. Cooley's Briefs on Insurance, Vol. 6, 2d ed., 5614. The terms of this policy are not ambiguous; they are to be given effect in accordance with their plain and ordinary meaning. Inglis v. General Casualty Co., 211 Or. 116, 316 P.2d 546; Perlman v. New York Life Ins. Co., 234 App.Div. 359, 254 N.Y.S. 646; and see Todd v. Occidental Life Ins. Co. of Cal., 208 Or. 634, 295 P.2d 870, 303 P.2d 492; 7, Couch, Cyclopedia of Insurance Law, 5766, Sec. 1670 et seq. The mere fact that the policy provides for partial disability indemnity, something less than total disability, is no ground for a more strict construction of the total disability clause. Doherty v. American Employers' Ins. Co., 112 N.J.L. 52, 55, 169 A. 652; Fitzgerald v. Globe Indemnity Co. of N. Y., 84 Cal.App. 689, 258 P. 458; Harrison v. Provident Life and Accident Ins. Co., 167 Tenn. 394, 70 S.E.2d 24.

The policy here involved is one of indemnity for occupational disability. Plaintiff need not show that he is disabled from pursuing any other gainful occupation; he need only prove that he is totally disabled from performing duties pertaining to his occupation as classified in the policy. That he may be perfectly able to be gainfully employed otherwise than as a school custodian is immaterial, and would not preclude his recovery. See Dullum v. Northern L. Ins. Co., 169 Or. 233, 237, 127 P.2d 749.

The clause 'totally disabled' is not synonymous with absolute helplessness. Fagerlie v. New York Life Ins. Co., 129 Or. 485, 498, 278 P. 104; 6, Cooley, supra, 5538; Vance, Insurance, 3rd ed., 1951, p. 1050; II 1945 Supplement, Couch on Insurance, 2029. Total disability, specified in an accident policy as quoted above, contemplates more than partial disability as defined in the same part of the policy. It contemplates an inability to do all substantial and material acts necessary to the prosecution of the insured's occupation in the usual and customary manner. Heald v. Aetna L. Ins. Co., 340 Mo. 1143, 104 S.W.2d 379; Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1106, 96 S.W.2d 957; Erreca v. Western States Life Ins. Co., 19 Cal.2d 388, 121 P.2d 689, 141 A.L.R. 68; Brunson v. Prudential Ins. Co., 182 S.C. 24, 188 S.E. 255, II Couch, 1945 Supp., supra, p. 2029 et seq., 6 Cooley, supra, p. 5543. Total disability is not established by proof that plaintiff can not perform his duties as effectively as before his injury nor by proof of his inability to perform some of his duties, particularly where the policy defines partial disability as inability to perform one or more of the important daily duties. Dietlin v. General American Life Ins. Co., 4 Cal.2d 336, 49 P.2d 590; Continental Casualty Co. v. Johnson, 314 Ky. 53, 234 S.W.2d 190; Federal...