17 S.E.2d 882 | Ga. Ct. App. | 1941
Lead Opinion
1. One ordinarily able to perform the duties of his employment, or one unable so to do, might at the instance of his employer receive his full salary for either full or partial performance of his duties. But this is not the final test in determining whether or not such person is totally and permanently disabled under the terms of the disability provision of a life-insurance policy. It is only a circumstance to be considered along with the other circumstances in the case. *398
2. The mere fact that the employer, for reasons satisfactory to itself, keeps the employee on the pay-roll, regardless of his disability, does not conclusively preclude liability on the part of the insurance company under the total and permanent disability provisions of the policy.
3. The judge did not err in charging the jury: "I charge you, gentlemen, further, that the fact that the insured received wages or salary from the Rome Hardware Company of Rome, Georgia, during the period of time for which he is claiming he was totally disabled, would not of itself preclude his right to recover as for such total disability, if he is otherwise entitled to recover. In other words, gentlemen, if in fact the plaintiff became totally disabled prior to arriving at the age of sixty years, and was totally disabled for the period sued for by the plaintiff, the fact that he received his salary from the Rome Hardware Company during that period would not of itself defeat a recovery by him, if he is otherwise entitled to recover."
The contract contained language somewhat different from the policies in Cato v. AEtna Life Insurance Co.,
(7) (
One ordinarily able to perform the duties of his employment, or one unable so to do, might, at the instance of his employer receive his full salary for either full or partial performance of his duties. But this is not the final test in determining whether or not such person is totally and permanently disabled under the terms of the disability provision of a life-insurance policy. It is only a circumstance to be considered along with the other circumstances in the case. Mutual Life Insurance Co. v. Dowdle,
3. The judge did not err in charging the jury as quoted in headnote 3. The defendant contends that the "jury should have been instructed that the payment of the salary was a circumstance which the jury should consider along with all the other testimony, and this important if not controlling circumstance should not be in substance and effect dismissed and eliminated from the consideration of the jury." The charge excepted to stated a correct principle of law applicable to the facts of this case. U.S. Casualty Co. v. Perryman, supra; Globe Accident Insurance Co. v. Helwig,
As stated in the first division of this opinion, the salary is not the controlling circumstance or final test of capacity, but it is only a circumstance to be considered along with all the other testimony. The charge here given was sufficient to convey the meaning of the principle, in so far as it was correctly applicable, on which the defendant based its case. Findley v.State,
Judgment affirmed. Broyles, C. J., and Gardner, J., concur. *403
Addendum
As to whether the verdict was authorized the real or final test is: Did the injury or disease totally incapacitate the insured within the meaning of the terms of the policy? Keeping an employee on the pay roll is not the determining factor, but is only a circumstance to be considered along with all the other evidence. After all, the question for final determination is, not whether the employee was kept on the pay roll after the injury or sickness, but whether he was totally disabled within the meaning of the policy. The Cato decision, supra, states that the insured there did not desist from work but on the contrary continued to perform substantially all of his duties notwithstanding the fact the doctor testified that it was unwise for him so to do. In this case the evidence authorized a finding that the insured was giving to the company only a small and insignificant part of the services which he had performed before he became disabled on account of sickness, and that the company was keeping him on the pay-roll at an amount equal to his full salary, and that this amount was not for part-time services, nor was it for full-time services, or for substantially full-time services, but was in the nature of a gratuity (or a pension), and although the doctor stated that it was unwise for the insured to perform the duties of his employment, he nevertheless "performed some parts of his work," but was unable to do and in fact desisted from doing "substantially all of the material acts necessary to the transaction of the insured's business or occupation in substantially his customary and usual manner."Cato case, supra.
Rehearing denied. Broyles, C. J., and Gardner, J., concur.