Woodall v. National Life & Acc. Ins. Co.
| Citation | 114 So.2d 889,269 Ala. 606 |
| Decision Date | 08 October 1959 |
| Docket Number | 3 Div. 864 |
| Parties | Bobby L. WOODALL, pro aml, v. NATIONAL LIFE AND ACCIDENT INS. CO. |
| Court | Alabama Supreme Court |
Godbold, Hobbs & Copeland, Montgomery, for appellant.
R. T. Milner, Robert S. Milner and Holley, Milner & Holley, Wetumpka, for appellee.
This case comes to this court on an appeal from the Circuit Court of Montgomery County following a nonsuit taken by appellant as a result of the action of the trial court in sustaining appellee's demurrer to appellant's complaint. Suit was commenced in November 1958 by the filing of a complaint by Bobby L. Woodall, suing by next friend (appellant), seeking to recover $1,100 on a contract of insurance written by The National Life and Accident Insurance Company (appellee).
The complaint alleges that approximately two years after the policy was issued at a time when Bobby L. Woodall was only three years old, he contracted or was stricken with poliomyelitis, being a disease contracted after the effective date of the policy. The complaint then contained the following further allegations:
'As a sole result of said disease, Bobby L. Woodall suffered a complete loss of use of his left foot and left hand for a period of, to-wit, two months and as a sole result of said disease the said Bobby L. Woodall has suffered a permanent loss of use of said left hand and left foot.'
The complaint sets forth in full the indemnity clause of the contract:
'(4) Indemnity for Specific Losses, as Defined Herein--Upon receipt during the lifetime of the Insured of due proof that while this policy is in force, the Insured has suffered any of the losses set forth below solely as a result of disease contracted after or injuries sustained after the effective date of this policy, the Company upon surrender of this policy will pay to the Insured the amount set opposite such loss, as follows:
Loss of Both Eyes The Principal Sum
Loss of Both Hands The Principal Sum
Loss of One Foot One-half of the Principal Sum
'The occurrence of any of the above losses shall terminate this policy; the payment of the amount provided herein for such loss shall fully discharge all liability hereunder.'
It is further alleged that the policy was surrendered to The National Life and Accident Insurance Company on September 5, 1953.
The demurrer of the defendant (appellee) takes the position, among others, that it is not alleged that the plaintiff suffered the complete and permanent loss of use of his left foot and left hand, that the complaint shows on its face that the complainant did not suffer the complete and permanent loss of use of his left foot and left hand and that it is not alleged that the complainant suffered the complete and permanent loss of use of his left foot and left hand while the alleged policy was in force.
Upon a consideration of the matter we have concluded that the court acted correctly in sustaining the demurrer to the complaint.
It is not alleged that the plaintiff, as a result of disease, suffered the complete and permanent loss of the use of his left foot and left hand. In fact, it affirmatively appears from the allegations of the complaint that the complete loss of use existed for a period of only two months. The loss, according to the allegations of the complaint, which the plaintiff suffered, was a mere temporary complete loss of use followed by a partial permanent disability. To state it a little differently, it affirmatively appears from the complaint that the alleged loss of use was not complete and permanent but that any permanent loss was only partial, the extent of which is not alleged.
It seems to us clear that although for a short period of time there may have been a complete loss of use of the left hand and the left foot, nevertheless this complete loss was not permanent. It affirmatively appears from the allegations of the complaint that the complete loss existed for a period of only two months. As the matter stands, there is now no complete loss of the use of either of these members and such loss as now exists is only a partial loss of use. Since we take this view the alleged loss does not come within the terms of the policy
We refer to the case of Metropolitan Life Ins. Co. v. Blue, 222 Ala. 655, 133 So. 707, 709, 79 A.L.R. 852, which seems to us to support the position which we here take. In that case the plaintiff was suing under a policy which provided benefits for total and permanent disability by reason of disease. The plaintiff, a physician, was confined to the hospital for a period of 54 days. The beginning of his trouble was sticking a needle in his left thumb on January 16, 1929. He attempted to resume his work on August 1, 1929. In the course of the opinion this court said: 'Without question Dr. Blue had a 'total disability' until August 1, 1929.' The opinion then points out that notwithstanding there was a total disability for a number of months, this total disability was not permanent. It was held that although this total disability was followed by partial diability, such disability was not within the terms of this policy. As the court pointed out: 'Total disability, followed by partial disability, whether temporary or permanent, is not within the policy.' The court held that the defendant was entitled to the affirmative charge and that its refusal was error.
It is clear to us that there is no such thing as a permanent and complete loss which can exist for a short time. It is not...
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