U.S. Casualty Co. v. Perryman

Decision Date15 May 1919
Docket Number6 Div. 421
PartiesUNITED STATES CASUALTY CO. v. PERRYMAN.
CourtAlabama Supreme Court

Rehearing Denied June 19, 1919

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by William J. Perryman against the United States Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Tillman Bradley & Morrow and E.L. All, all of Birmingham, for appellant.

Stokely Scrivner & Dominick, of Birmingham, for appellee.

MAYFIELD J.

This is an action on an accident insurance policy. The injury complained of was a strain or sprain of the knee of the insured. The plaintiff recovered the full amount of the policy, and from the judgment in his favor the insurance company appeals.

The main insistence as to error is that the judgment was excessive, and that this was induced by erroneous rulings of the court in construing the policy.

As to the meaning of the phrases "total disablement" and "partial disablement," they are used and defined in the policy of insurance sued upon as follows:

"(a) Continuous disablement and inability from date of accident to perform any and every business duty or occupation--hereinafter called total disablement.
"(b) Continuous disablement and inability (either from date of accident or immediately following a period of total disablement) to perform one or more but not all of the material duties of business or occupation--hereinafter called partial disablement."

The policy provided for the payment to the insured of $25 per week for total disablement, and of $12.50 per week for partial disablement. The jury evidently awarded damages for total disablement for the period of 29 weeks or more, and for partial disablement for 21 weeks or more, and also for surgeon's fees, which were provided for in the policy under certain conditions.

The insurance company contends that the policy was improperly construed by the trial court. The points of error claimed by appellant are well and succinctly stated in brief of its counsel, together with the authorities sustaining the propositions. They are as follows:

"Point 1. 'Continuous disablement and inability from date of accident to perform any and every business duty or occupation,' means continuous disablement and inability immediately resulting from the accident. If after the accident there is no period of disability at all immediately following, or if after the accident there is a period of partial disability before a period of total disability commences, there is no total disability from date of accident, within the meaning of the policy. Continental Casualty Co. v. Ogburn, 175 Ala 357, 57 So. 852, Ann.Cas. 1914D, 377; 4 Cooley's Briefs on Insurance, pp. 3168, 3169; Williams v. Preferred Ass'n, 91 Ga. 698, 17 S.E. 982; Merrill v. Travelers' Ins. Co., 91 Wis. 329, 64 N.W. 1039; Ritter v. Accident Ass'n, 185 Pa. 90, 39 A. 1117.
"Point 2. Within the meaning of a provision in an accident insurance policy designating total disability as 'continuous disablement and inability from date of accident to perform any and every business duty or occupation,' the term 'from date of accident' must be considered as an adverb of time and not causation, and said term does not mean a reasonable time after the accident, but means presently, or without any substantial interval between the accident and the total disability. Authorities under point 1, supra.
"Point 3. Under the terms of the policy sued on there can be only one period of total disability recovered for. If there is a period of total disability, followed by a period of partial disability, afterwards there is another period of total disability, there can be no recovery for the latter period of total disability, as such.
"Point 4. Under the terms of the policy sued on, if a period of total disability is interrupted by a period of partial disability, there can be no recovery on account of any total disability after such period of partial disability.
"Point 5. Under the terms of the policy sued on, if a period of partial disablement breaks the continuity of total disablement, no recovery can be had for any total disablement after such period of partial disablement.
"Point 6. Under the undisputed evidence, plaintiff's total disability, if any, did not commence 'from date of accident'; hence there can be no recovery in this case for total disability.
"Point 7. Under the undisputed evidence, there was a period or periods of only partial disability, on the part of plaintiff, during each of the months of February, March, April, and May, 1914. After the first period of this partial disability, there should not have been any recovery thereafter on account of total disability, and the verdict is excessive to the extent that the jury, in awarding damages, compensated the plaintiff for total disability after a period or periods of partial disability had intervened.
"Point 8. It was the duty of the plaintiff, upon making claim of the defendant, to furnish proof of disability showing the respective periods of total and partial disability with accuracy, and his failure to do so would defeat his right of recovery, provided the insufficiency of the proofs in this regard were pointed out to him, and he thereafter failed or refused to amend the proof so as to show the respective periods of total and partial disability, or to find new proof furnishing such information.
"Point 9. The plaintiff, in his proofs of loss which he presented to the company, did not point out the respective periods of total and partial disability, either in the first instant or after the proofs were called to his attention and their insufficiency in this regard pointed out. The defendant is therefore entitled to the general affirmative charge."

Appellant then insists that the undisputed evidence shows that under these definitions there never was any "total disability," because insured performed some of his duties for some time after the date of the accident; that his disablement was partial only, at best, during the period claimed; that if there was ever a total disablement, within the terms of the policy, it ceased when insured performed part of his business or duties; and that if he thereafter became totally disabled from performing any of his duties or business, he could not recover as for total disablement, but at best only as for partial disablement, though in fact he was totally disabled; this, because the total disablement was not in such case "continuous from date of accident."

We find no reversible error in any of the instructions given to the jury by the trial court. The court instructed the jury correctly as to the beginning and ending of the periods of total and partial disablement. We here quote a part of the oral charge (and there were written charges to the same effect):

"So it will be your duty, if you find for the plaintiff in this case, to ascertain and determine from the evidence what period, if any, the plaintiff was totally disabled for, the plaintiff was disabled for, what period, if any, that he was partially disabled for, because his amount of recovery, if he is entitled to recover, would be determined--the amount that he would be entitled to recover, if anything, would be governed by whether or not he was partially disabled or totally disabled. Now, under the terms of this policy, gentlemen, if you should find from the evidence that the plaintiff was partially disabled for any period of time, then after such period of partial disablement he would not be entitled to recover anything for total disablement, although you should find from the evidence that after such period of partial disablement he was totally disabled, because this policy provides that the total disablement--it must be continuous disablement and inability from the date of accident to perform any business duty or occupation. In other words, if the--if you should find from the evidence that he was partially disabled for any period of time, then, although after that time he was--you should find from the evidence he was totally disabled, he could not be entitled to recover under this policy for any period
of total disablement which was subsequent to any period of partial disablement, after a period of partial disablement, even though total disablement, he could not receive pay for but partial disablement because under the terms in this contract, which is a contract which the parties entered into. It is a question of fact under the evidence in this case for you to determine for what period, if any, the plaintiff was totally disabled, what period, if any, he was partially disabled."

Appellant certainly has no cause to complain as to this part--and does not, except that it contends that the evidence without dispute shows that there was no total disablement within the meaning of the policy.

The defendant did except to two propositions stated in the oral charge of the court which defined total and partial disablement. The first of these propositions was as follows:

"Now, if you should find from the evidence the date of the accident that the plaintiff was unable, disabled from performing any material or substantial part of his duties under his employment, then--if you should find from the evidence those facts, that he was unable and disabled as a proximate consequence of this accident from performing any of the material and substantial duties of his employment, then he would be totally disabled and would be entitled to recover for such total disablement from the date of the accident."

The second proposition was as follows:

"In determining as to whether or not he was partially disabled, if you should find from the evidence that he was able to perform a material and substantial part of the duties of his employment, then
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