United Ins. Co. of America v. Ray

• Decision Date: 20 June 1963
• Docket Number: 6 Div. 916
• Citation: 155 So.2d 514,275 Ala. 411
• Parties: UNITED INSURANCE COMPANY OF AMERICA v. Morian RAY.
• Court: Alabama Supreme Court

Page 514

155 So.2d 514

275 Ala. 411

UNITED INSURANCE COMPANY OF AMERICA v. Morian RAY.

6 Div. 916.

Supreme Court of Alabama.

June 20, 1963.

Dominick, Roberts, Davidson & Donald, Tuscaloosa, for appellant.

Clement, Rosen, Hubbard & Waldrop, Tuscaloosa, for appellee.

MERRILL, Justice.

Appellee recovered a judgment for $9,900 as damages in a suit on an insurance policy under which he was insured against total disability and total loss of time. A motion for a new trial was overruled and this appeal followed.

Appellant voluntarily paid the total disability benefits for six months, April 20, 1957, to October 20, 1957, and in a former suit appellee recovered the total disability payments, $300 per month for the next six months, October 20, 1957, to April 20, 1958, United Insurance Company of America v. Ray, 271 Ala. 543, 125 So.2d 704. Appellant refused to pay any monthly installments after April 20, 1958, and this suit was filed to collect the subsequent payments.

Assignments of error 25, 26, 27, 28 and 29 are concerned with the refusal of the court to give the affirmative charge with and without hypothesis. The argument is based upon the undisputed evidence that appellee did perform some work as a building contractor after his injury.

It is only where there is no evidence tending to establish the plaintiff's case that the court may direct a verdict for defendant; and in considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to the plaintiff, regardless of any view we may have as to the weight of the evidence. Greyhound Corporation v. Brown, 269 Ala. 520, 113 So.2d 916; Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453.

Some of the evidence more favorable to appellee was that before the date of this injury, Ray had been in the general construction business; that he did the finsished carpenter work on his jobs; that he sometimes helped the electricians and did the cabinet work, moulding, laying tile floors, tile bathrooms and different types of work like that himself; that he personally ran the power saw and in addition generally directed three or four men who worked with him; that his work required physical exertion, bending, stooping and lifting; that he is 56 years old, has a high school education and had been a carpenter, carpenter foreman and assistant superintendent for contractors; that all of his experience has been in the construction business; that since the accident in 1957 his ability to get about has become progressively worse; that he was in constant pain; that he had to take pain pills or pain shots for relief; that his lower extremities have been numb like they were asleep for 60 to 75 per cent of the time since his original injury; that he cannot bend or stoop; that he connot lift any object whatsoever; that he cannot climb or walk on scaffolding; that excess movements cause severe pain; that he is unable to sleep longer that two hours at any one time except under the influence of the drugs prescribed by his physician; that since the injury his lower extremities have withered; that to get up out of a chair he requires assistance; that he cannot drive a conventional shift automobile because his legs do not have sufficient strength to depress the cluth; that he cannot walk on rough ground without help or support. Ray demonstrated to the jury his ambulatory disabilities by walking up and down in front of the jury box.

Dr. Wallace McAdory, Jr., Ray's attending physician, testified that Ray sustained a 60 to 70 per cent compression fracture of the fifth lumbar vertebra; that such injury would be reasonably calculated to produce pain; that his examination and tests indicated that there was nerve damage in Ray's spine; that there had been atrophy of both legs; that the compression fracture of the fifth lumbar vertebra is not completely stabilized and that there is a substantial danger or peril to Ray's health by reason of any attempt to work or engage in any kind of physical activity; that he had advised Ray not to engage in work; that work or physical activity could accelerate nerve changes or could possibly progress to paralysis; that it would be dangerous for Ray to undertake to drive a car; that any jar or blow on the buttocks could further compress the fifth lumbar vertebra and result in permanent paralysis; that in his opinion, Ray was totally and permanently disabled. No other medical evidence was submitted to the jury and Dr. McAdory's testimony that Ray is totally and permanently disabled is uncontradicted in the record.

In Equitable Life Assur. Soc. of United States v. Watts, 230 Ala. 297, 160 So. 713, a suit under a total disability provision in a policy, the plaintiff was doing certain light work after his injury, both for his employer and later for the Civil Works Administration. Affirming a judgment for plaintiff, this court said:

'The mere fact that, when not suffering an acute attack of asthma, he could and did, up to the time of trial, perform some such work, would not justify an affirmative instruction for defendant. If work is accompanied by suffering, aggravation of a chronic disease, in such sort that sound medical advice says not to work, the fact that there is still strength to do it at times, and, under stress of circumstances he does so perform, will not defeat his right to the total permanent disability benefit under stipulations here presented. [Citing cases].'

Another case in point is Hamm v. Metropolitan Life Insurance Co., 237 Mo.App. 12, 166 S.W.2d 324, where it was said:

'* * * We realize and fully appreciate that many men attempt to work when their condition is such that ordinary reason and prudence would dictate that they should desist therefrom because a continuance of efforts to work would gravely endanger health and life. Where there is evidence showing such conditions, our courts, including this court, have never failed to hold that a case is made for the jury to decide. * * *'

Considering the evidence most favorable to the plaintiff, the trial court did not err in refusing to give the requested affirmative charges.

Moreover, the action could have been justified on the basis that appellee demonstrated to the court and jury how he walked after the accident; and this evidence, before the jury but not before us, could have sustained the rulings of the trial court as we pointed out in our opinion in this same cause in 271 Ala. 543, 125 So.2d 704.

Assignment 30 deals with the refusal of the trial court to give requested written charge 8 for the defendant. The charge was faulty because it put too much emphasis on performance rather than ability to perform. Moreover, the court did give defendant's requested...