28 A.2d 349 | Pa. Super. Ct. | 1942
Argued April 21, 1942. Plaintiff brought this action in assumpsit against defendant to recover total and permanent disability benefits alleged to be due under an insurance policy. The relevant provision of the policy is printed in the margin.1 *333
In October, 1937, plaintiff underwent an operation. Disability benefits were paid to him at the rate of $100 per month2 to and including June, 1938. In July, 1938, defendant notified plaintiff that it was restoring his policy to a premium paying basis, and refused to pay any further monthly benefits. Its position was that plaintiff was not totally and permanently disabled within the meaning of the policy. This assumpsit action was then brought for the monthly benefits which would have accrued thereafter. The jury returned a verdict for plaintiff. Defendant's motions for judgment n.o.v. and a new trial were overruled. From the judgment entered for plaintiff, defendant has appealed, and assigns as error the lower court's refusal to enter judgment n.o.v.
The only matter for our consideration is the adequacy of the proof that plaintiff was totally and permanently disabled within the meaning of the policy, and thus entitled to its benefits. Having read the evidence in the case in the light most favorable to plaintiff, and having made all reasonable inferences to be drawn therefrom in his favor, we are of the opinion that plaintiff was not shown to be totally disabled within the terms of the policy of insurance, that defendant's point for binding instructions should have been affirmed, and that the court below was in error in refusing to grant defendant's motion for judgment n.o.v.
In order to recover under the provisions of the policy the burden was on plaintiff to prove that he was totally and permanently disabled (Pearlman v. Metropolitan *334 Life Ins. Co.,
Plaintiff's operation in 1937 disclosed that he had adhesions throughout the abdominal cavity, and there was medical testimony that these adhesions would endure for the balance of his life. He was fifty-three years of age, and came to this country in 1907 when he was nineteen years old. He had experience in various occupations and business enterprises. In 1910 he was an employee in a general store, and continued in that employment until 1918. As early as 1916 he was engaged to some extent in the operation of a small coal mine. He later acquired other mines. At the time of *335 the trial he owned mines which were being operated, and he was a member of the Coal Producers' Association. At that time he also had a timber business which supplied timber for his own and other mines. In 1924 he purchased the store business and a theatre from the employer for whom he had worked from 1910 to 1918. He closed the store in 1926, and disposed of the theatre in 1934. He testified that up to September, 1937, he did manual labor and also supervised and managed his mining operations; that during the time he operated his store he managed it and performed all the necessary duties in connection therewith; that for ten years he operated and managed the theatre and performed all the supervisory work necessary to be done in its operation. From 1925 to 1934 he was engaged with another in the installation of furnaces. In the summer of 1937 he purchased a beer distributing business, and obtained a license for the distribution of malt beverages. He annually renewed the license, and this business was being conducted in his name at the time of the trial in March, 1941. He also held a commission as notary public in this state and functioned as such.
Although plaintiff was unable to do manual labor as a result of his physical condition, there was an absence of competent proof from which the jury could find, as provided by the policy, that he had "become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he . . . . . . is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value. . . . . ."
His inability to do manual labor did not establish total disability as defined by the policy. Even if he is unable to do everything necessary to be done in the conduct of the businesses which he owns, he cannot be considered as totally disabled.Butler v. Metropolitan Life Ins. Co.,
If the verdict in this case is to be justified and sustained, it must be on the basis of the presence of a factual issue raised by the pleadings and the evidence, and requiring the judgment of the jury. We find no competent evidence in the record that the adhesions were sufficiently serious to cause plaintiff to be totally disabled within the meaning of the provisions of the policy. All the medical testimony is to the contrary, and there are no other acceptable implications of the totality of his disability. Three doctors were called by plaintiff, and one by defendant. Their testimony is not conflicting in any material respect. Three of the medical witnesses testified that plaintiff could not perform manual labor, but they were of the opinion that he could do work of a managing and supervisory nature. See Cooperv. Metropolitan Life Ins. Co.,
Plaintiff was a competent witness to testify to his symptoms and to facts within his knowledge. But it is manifest that his testimony standing alone was insufficient to require the case to be submitted to the jury on the real issue.4 The nature and the effect of plaintiff's internal adhesions, as well as their presence, were matters of medical science, and the testimony of non-expert witnesses as to such matters would not be of any value, and would be without probative force. Critzer et ux. v.Donovan et al.,
Consequently, it cannot be said that there is any evidence from which a jury could find that plaintiff is totally disabled within the terms of the policy upon which he seeks to recover benefits for total and permanent disability. Although "total disability" does not mean helplessness or complete disability, it includes more than that which is partial. Wuerfel v. Metropolitan LifeIns. Co.,
The case before us is clearly distinguishable from Feigenbaumv. Prudential Insurance Co. of America,
The assignment of error is sustained.
Judgment is reversed, and is here entered for defendant.
"Total and Permanent Disability Benefits.
"Monthly Income Ten Dollars per month for each $1000 of the Face Amount of Insurance, payable at the Home Office of the Company to the Insured in event of total and permanent disability before age 60, subject to the provisions as to Total and Permanent Disability contained in the Policy."
