Volunteer State Life Ins. Co. v. Danley

• Decision Date: 20 April 1948
• Docket Number: 8 Div. 656.
• Citation: 36 So.2d 123,33 Ala.App. 543
• Parties: VOLUNTEER STATE LIFE INS. CO. v. DANLEY.
• Court: Alabama Court of Appeals

36 So.2d 123

33 Ala.App. 543

VOLUNTEER STATE LIFE INS. CO. v. DANLEY.

8 Div. 656.

Alabama Court of Appeals

April 20, 1948

Rehearing Denied May 11, 1948.

Appeal from Circuit Court, Lauderdale County; Robt. M. Hill, Judge.

Mitchell & Poellnitz, of Florence, for appellant.

Bradshaw & Barnett, of Florence, for appellee.

The following charges were refused to defendant:

10. 'If the Plaintiff has been physically able at all times since October 19, 1945, to engage in any occupation whatsoever for profit, then he is not entitled to recovery in this case.'

12. 'If you are reasonably satisfied from the evidence in this case that beginning with October 19, 1945, and continuing up to the filing of this suit, plaintiff was able physically and without injury to his health to engage in the business for profit of writing life insurance, then your verdict will be for the defendant.'

13. 'If you are reasonably satisfied from the evidence in this case that beginning with October 19, 1945, and continuing up to the filing of this suit, plaintiff was able physically and without injury to his health to engage in the business for profit of selling automobiles, then your verdict will be for the defendant.'

14. 'If you are reasonably satisfied from the evidence in this case that beginning with October 19, 1945, and continuing up to the filing of this suit, plaintiff was able physically and without injury to his health to engage in the business for profit of chicken farming, then your verdict will be for the defendant.'

'15. 'If you are reasonably satisfied from the evidence in this case that beginning with October 19, 1945, and continuing up to the filing of this suit, plaintiff was able physically and without injury to his health to engage in the business for profit of trading mules, then your verdict will be for the defendant.'

16. 'If you are reasonably satisfied from the evidence in this case that beginning with October 19, 1945, and continuing up to the filing of this suit, plaintiff was able physically and without injury to his health to engage in the business for profit of lending money, then your verdict will be for the defendant.'

20. 'I charge you gentlemen of the jury that the plaintiff in order to be totally disabled must be physically disabled from doing and performing the substantial features of any gainful occupation.'

29. 'I charge you gentlemen of the Jury that an insured who continues uninterruptedly in the performance of substantial and material acts necessary to the prosecution of his business or profession in substantially his customary way for compensation is not totally disabled within meaning of the policy here involved.'

CARR Judge.

Plaintiff below bases his cause of action on Count 1 of the complaint for total and permanent disability under the provisions of a policy issued to him by the defendant; under Count 2 for the amount of an annual premium on said policy, which premium was paid to cover a period during the alleged disability. The verdict of the jury was favorable to the insured under both counts of the complaint.

Assignment of error No. 1 is predicated on the action of the court in overruling demurrers to the second count. There is serious doubt that the judgment entry contains a sufficient recitation of an adjudication on the demurrers to invoke our review. It is merely a copy of the bench notes of the trial judge. Paletz et al. v. Tayloe et al., 230 Ala. 131 159 So. 836. We will pretermit a decision on this matter however, since we are clear to the conclusion that at the instance of the appellant the general affirmative charge should have been given as to Count 2. Our views in regard thereto will be discussed subsequently in this opinion.

Assignments of error numbered 2, 6, 7, 8, 24, and 25 contain one of the following reviewable defects: Error not pointed out with certainty, not insisted upon in brief, or not sufficiently argued in brief. Great Atlantic & Pacific Tea Co. v. Smalley, 26 Ala.App. 176, 156 So. 639; McDavid v. United Mercantile Agencies, 248 Ala. 297, 27 So.2d 499; Powell v. Bingham, 29 Ala.App. 248, 196 So. 154.

Dr. Harry Simpson testified that he had devoted special study to diseases of the heart and had been treating the maladies for about twenty-five years. Without question he was qualified as an expert to state that in his opinion the appellee was suffering from the effects of coronary thrombosis on each occasion when examined by witness. Pacific Mutual Life Ins. Co. of California v. Edmonson, 235 Ala. 365, 179 So. 185; Tucker et al. v. Graves, 17 Ala.App. 602, 88 So. 40.

There were no objections interposed to the question about which complaint is made under assignment of error number 4. Review on appeal is limited to those matters upon which rulings are invoked at nisi prius. Lipscomb v. State, 32 Ala.App. 623, 29 So.2d 145.

Appellee was interrogated as follows: 'Have you ever had or followed the occupation of renting houses for a livelihood?' To which he answered, 'No.' Appellant did not object to the question, but, after response, moved to exclude the answer. Our approach here is controlled by the rule that where no objection is interposed to a question and the reply is responsive, a refusal to sustain a motion to exclude the answer will not be reviewed by the appellate courts. Louisville & N. R. Co. v. Butler, 1 Ala.App. 279, 55 So. 262.

Refused charge No. 10 if applied would deprive the insured of the benefits provided by the policy if he could have engaged in any occupation whatsoever for profit during the period claimed. This is not the test of total disability. Metropolitan Life Ins. Co. v. Alston, 248 Ala. 671, 29 So.2d 233; New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547.

Charges numbered 12, 13, 14, and 15 are clearly faulty. Each is abstract; and furthermore they do not accurately state the doctrine of total disability. The standard or test of determination is: Can the insured ' substantially perform the material duties of some occupation for which he is qualified by experience and training'? (Emphasis ours.) Metropolitan Life Ins. Co. v. Alston, supra [248 Ala. 671, 29 So.2d 236].

Appellant urges in brief that on the authority of New York Life Ins. Co. v. Jones, 31 Ala.App. 417, 17 So.2d 879, we should base error for the refusal of each of these charges. It is to be noted that the author of the opinion in the Jones case observed that the two charges there being reviewed were not abstract. This aside, some of the essential elements of the applicable rule are omitted in the charges in the instant case. They find place in the instructions in the Jones case, and in this respect, also, the authority cannot influence a holding here.

With the possible exception that it is not entirely abstract, the criticism just noted applies with equal force and effect to refused charge No. 16. With reference to the 'occupation of lending money' charge No. 22, given at the instance of appellant, fully covers the matter.

By inadvertence counsel has based a refusal of charge numbered 19 as assignment of error 23. This charge appears in the record among those endorsed 'given' by the trial judge. We do not find it among the refused charges.

The refusal of charge No. 20 was not error. The instruction extends the 'gainful occupation' to limits too broad and it does not make confinements within the class or group that the insured by experience and training is qualified to perform. The term 'occupation' is of relative meaning and has relation to one's capabilities and competency. New York Life Ins. Co. v. Torrance, supra.

There were some exceptions reserved to portions and segments of the court's oral charge. In its entirety the charge was clear and comprehensive. Sixteen written instructions were given at the tender of appellant. The excerpts about which complaint is registered must be considered in connection with the entire oral charge and the given charges. Shaw & Shaw v. Cleveland, 5 Ala.App. 333, 59 So. 534; Hope v. State, 21 Ala.App. 491, 109 So. 521.

We have given due consideration to each of these assignments, and, in harmony with the announced rule, we find no reversible error here.

Charge 29, refused to appellant, was in part taken from a statement in the body of the opinion in the case of New York Life Ins. Co. v. Torrance, supra, and referred to in Metropolitan Life Ins. Co. v. Alston, supra.

The bare fact that a charge is copied or taken from an expression in a judicial opinion in some prior case, there correctly stated, does not make it acceptable for inclusion in a special written instruction to be given to the jury. Wear v. Wear, 200 Ala. 345, 76 So. 111; Maxwell v. State, 32 Ala.App. 487, 27 So.2d 804. This rule is especially forceful and pertinent if the two cases are dealing with dissimilar facts.

The instant charge contains the vice of assuming facts which, under the evidence, were for the determination of the jury and therefore were invasive of its province. Continental Gin Co. v. Milbrat, 10 Ala.App. 351, 65 So. 424; Pounds v. State, 15 Ala.App. 223, 73 So. 127.

It is cogently urged that the general affirmative charge should have been given the defendant below under Count 1 of the complaint, and this for the reason that the evidence was not sufficient to sustain the claim of total disability.

In order to properly illustrate our views here, we will delineate the tendencies of the evidence in some detail.

The record contains the testimony of the insured, four physicians (two by depositions), and some exhibits.

It appears from the testimony of the appellee that at the time of the trial below he was 57 years of age. He had a limited education. Throughout a great period of his life he had engaged in what may be...