Opinion
No. 30556.
April 3, 1933.
1. INSURANCE.
Insured, under business protection contract, held not entitled to recover premiums voluntarily paid, on ground of waiver of payment because of disability.
2. INSURANCE. Count in declaration, praying for recovery of premiums paid, on ground insured was disabled, waiving premium held insufficient to show payments were involuntary.
Count in declaration alleged that, although insurer agreed to waive payment of premium falling due thereunder during the time the insured was totally and permanently disabled, the insurer had exacted payment of premium falling due during insured's total and permanent disability.
APPEAL from circuit court of Sunflower county. HON. S.F. DAVIS, J.
Moody Johnson, of Indianola, for appellant.
In order for an insured to be totally and permanently disabled within the meaning of a health or accident policy, it is not necessary that he be wholly incapacitated to perform any duty incident to his usual employment or business, but that if the insured is prevented by diseases from doing the substantial acts required of him in his business, he is totally disabled.
Locomotive Engineers Mutual Life Accident Insurance Company v. Meeks, 127 So. 699; Metropolitan Casualty Insurance Company v. Cato, 113 Miss. 283, 74 So. 114; Equitable Life Assurance Society v. Serio, 155 Miss. 515; Metropolitan Life Insurance Company v. Lambert, 157 Miss. 579, 128 So. 750; New York Life Insurance Company v. Best, 128 So. 565; Mutual Benefit Health Accident Association v. Mathis, 142 So. 494.
J. Morgan Stevens, of Jackson, for appellant.
The appellant was disabled to perform the substantial duties of his profession as an attorney at law.
Fidelity G. Co. v. Logan, 191 Ky. 92, 229 S.W. 104; New York Life Insurance Company v. McLean, 218 Ala. 401, 118 So. 753; Heffner v. Fidelity G. Co., 110 Tex. 596, 613, 160 S.W. 330, 222 S.W. 966.
The appellant was disabled to perform the duties of a plantation manager, a second occupation before his illness.
Metropolitan Life Insurance Company v. Cato, 113 Miss. 283, 74 So. 114; Mutual Benefit, etc., v. Mathis, 142 So. 494.
When a professional man is rendered incapable of earning anything in the practice of his profession — indeed, when rendered so incapable that it would be useless to attempt to carry it on for any practical purpose — it is a case substantially, of total disability.
Mitchell v. Fidelity G. Co., 37 Ont. L. Rep. 335; Equitable Life Assurance Society v. Serio, 155 Miss. 575, 124 So. 485; New York Life Insurance Company v. Best, 157 Miss. 571, 128 So. 565; Locomotive Engineers Mutual Life Accident Ins. Co. v. Meek, 157 Miss. 97, 127 So. 699, 18 A.L.R. 1339; Locomotive Engineers Mutual Life Accident Ins. Co. v. Meek, 157 Miss. 97, 127 So. 699; 18 A.L.R. 1339; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Provident Life Accident Ins. Co. v. Anding, 144 Miss. 277, 109 So. 670; Aetna Life Ins. Co. v. Thomas, 144 So. 50.
Moody Johnson, of Indianola, and J. Morgan Stevens, of Jackson, for appellant.
The allegations in the second count of the declaration are to the effect that the premiums were not voluntarily paid, but were paid under protest. There is an admission in the record, to the effect that the allegations contained in the second count of the declaration are true. Appellant was entitled to recover the premiums so paid.
Winstrum v. Aetna Life Insurance Company, 215 N.W. 93, 54 A.L.R. 289.
Neil Clark, of Indianola, for appellee.
An attorney is not wholly disabled by an injury to his hands, when he is able to be at his office during office hours, attending to professional business, advising clients commencing suits, accepting employment, and not refusing to accept employment on account of the injury.
United States Mutual Accident Association v. Millard, 43 Ill. App. 148.
Total disability must, from the necessity of the case, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged.
One who labors with his hands might be so disabled by a severe injury to one hand as not to be able to labor at all at his usual occupation, whereas a merchant or professional man might by the same injury be only disabled from transacting some kinds of business pertaining to his occupation.
Walcott v. United Life, etc., Co., 8 N.Y.S. 263; Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114.
Appellant cannot be construed, under the terms of the contract, to be totally and permanently disabled when the record shows that he has continued to engage in his profession, and to do plantation work for a salary.
Life Casualty Company of Tennessee v. Jones, 73 So. 566.
Where a policy provides for compensation for total and permanent disability, recovery can be had only where the disability is both total and permanent.
Shipp v. Metropolitan Life Insurance Company, 11 So. 453.
Where an attorney performs some of his usual duties, he cannot recover for total and permanent disability.
Douglas E. Beams v. American National Insurance Company, No. 29453, decided by this court in May, 1931.
After a careful review of the entire evidence of this record to allow recovery in this case would exceed even a liberal construction of the terms and would overrun the just purpose of such a policy — would be in effect to rewrite the contract which the parties have made and to hold that what is in substantive fact a partial disability is in law a total disability.
Curlee v. Mutual Life Ins. Co., 144 So. 686.
Argued orally by J.M. Stevens, Sr., for appellant, and S.D. Neill, for appellee.
The appellant, an attorney at law, instituted this suit to recover disability benefits under an insurance contract denominated a "Business Protection Contract." The provisions of the policy defining "total and permanent disability," as used therein, are as follows:
"Total and Permanent Disability Defined. Disability is total when the insured is prevented by bodily injury or disease from performing any work or from engaging in any occupation whatever for remuneration or profit. Total disability shall be deemed to be permanent if it has been continuous for not less than three consecutive months immediately preceding the receipt of due proof."
"Recognized Disabilities. Without prejudice to any other cause of disability, the company will recognize the entire and irrecoverable loss of the sight of both eyes, or the total and permanent loss by removal or disease of the use of both hands or both feet or of such loss of one hand and one foot as permanent and total disability."
At the conclusion of the evidence, the court peremptorily instructed the jury to return a verdict in favor of the defendant, appellee here, and this action of the court is assigned as error. Upon the whole evidence, and particularly upon the point as to whether there was a total and permanent loss of the use of both hands, we think the question of whether or not the appellant was totally disabled within the meaning of the provisions of the policy should have been submitted to the jury, under proper instructions.
By a second count in the declaration the appellant sought to recover premiums exacted of him by the appellee falling due during his permanent and total disability, amounting to sixty-four dollars and fourteen cents, with interest. Upon this count, this case is controlled by the case of Ætna Life Insurance Co. v. Thomas (Miss.), 144 So. 50, wherein it was held that an "insured could not recover premiums voluntarily paid on ground that he was entitled to waiver of payment because of disability." Appellant seeks to avoid the effect of this holding on the ground that the declaration alleges that the payment of these premiums was not voluntary, but was made under protest, and that it is admitted in the record that "the premiums on the insurance policy here sued on have been paid as alleged in the second count of the declaration." The second count of the declaration alleges that, although by the terms and conditions of said policy, the defendant agrees to waive the payment of premiums falling due thereunder during the plaintiff's total and permanent disability, "yet the said defendant has exacted of the said plaintiff the payment of said premiums falling due during his total and permanent disability." This was not a sufficient charge that these payments were involuntary.
For the error in granting the peremptory instruction requested by the appellee, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.