42 Ga. App. 11 | Ga. Ct. App. | 1930
(After stating the foregoing facts.)
1. A motion to dismiss a case upon the ground that under the pleadings and the evidence there can be no legal recovery is never a proper motion where the petition sets forth a cause of action, no matter whether the evidence fails, or to what extent it may fail, to sustain the allegations made. ■ Such a motion is different from a motion for a nonsuit, since it relates to the sufficiency both of the petition and of the evidence, while a motion for a nonsuit is in the' nature of a demurrer to the evidence only. In the brief filed in this court for the insurer, counsel do not even contend that the petition failed to state a cause of action, the argument being devoted wholly to the sufficiency of the evidence to prove total disability within the meaning of the policies or to sustain the allegations of the petition; but regardless of the position taken by counsel, either in this court or in the trial court, it is clear that the petition did not fail to allege a cause of action, and that it was therefore not subject to an oral motion to dismiss in the nature of a general demurrer. Such was the character of the motion made, so far as it applied to the petition, and it should have been overruled. Kelly v. Strouse, 116 Ga. 873 (4 a) (43 S. E. 280); Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231 (120 S. E. 654); Hughes v. Weekley Elevator Co., 37 Ga. App. 130 (1) (138 S. E. 633). However, if the allegations were not proved by the evidence it would doubtless be correct for this court, instead of ordering a reversal, to affirm the judgment of dismissal, with direction that it operate only as a judgment of nonsuit, and not as an adjudication of the insufficiency of the petition to state a cause of action. Hughes v.
2. There is no insistence that the evidence did not show a permanent disability, but the chief contention is that the disability was not total within the intent and purview of the policies. Each of the policies provided that “ disability shall be deemed to be total whenever the insured is wholly disabled by bodily injury or disease, so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit;” and it is the construction of this clause and the applicability of the evidence to it which present the further problem for determination by this court. Upon the question of the proper construction of the policy the case is virtually controlled by the decision of the Supreme Court in Cato v. Ætna Life Insurance Co., 164 Ga. 392 (138 S. E. 787). In that case the language of the policy was as follows: “If total disability of any employee entitled to insurance, under the schedule of insurance contained in this policy, begins before the age of 60, and if due proof be furnished the company after such disability has existed for a period of six months, and if such disability presumably will during lifetime prevent such employee from pursuing any occupation for wages or profit, such employee shall be deemed to be totally and permanently disabled within the meaning of this policy.” Attention is here called to the fact that the policy in the Galo case did not, like some policies, provide merely for a disability to follow the usual occupation or employment of the insured, or to transacting any business pertaining to such occupation, but said that the disability insured against must be such' as to prevent the insured “from pursuing any occupation for wages or profit.” Notwithstanding this language, the Supreme Court laid down the following principles as governing the rights and liabilities of the parties under such a policy: “Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he depends for a living. . . When the insured is incapacitated from performing any substantial part of his ordinary duties, a case of total disability is presented, although he is still able to perform some parts of his work. Total disability is inability to do substantially allq of the material acts necessary to the transaction of the insured’s occupation, in substantially his
It is suggested by counsel for the defendant that the policy in the Calo case was a group policy issued for the protection only of employees of a particular industrial institution. However, the liberal construction adopted in that ease does not appear to have sprung from this fact, and an examination of the cases cited in support of the decision lends force to the inference that the Supreme Court did not intend to express a doctrine which should be applicable only to group insurance. In Hurley v. Bankers Life Co., 198 Iowa, 1129 (199 N. W. 343, 37 A. L. R. 146), the Supreme Court of Iowa, after noting that cases of this character fall readily into two general classes, namely, “those wherein the policy provides for indemnity if the insured is disabled from transacting the duties pertaining to the occupation in which he is then engaged, and those wherein the policy provides for indemnity if the insured is disabled from performing any work or following any occupation,” stated that the case then for decision belonged to the latter class, since the disability there insured against must have been such as prevented the insured “wholly from performing any work or following any occupation for compensation or profit.” The ruling was that the loss of a leg by an uneducated farmer, compelling him to use crutches and preventing his doing any effective work on the farm, was not within the meaning of a policy providing compensation for a total, permanent, incurable disability preventing him permanently, continuously, and wholly from performing any work or following any occupation for compensation or profit. But in the course of the opinion it was recognized that numerous courts in other jurisdictions had applied to like policies an interpretation more favorable to the insured, and the doctrine of stare
In the ease of Foglesong v. Modern Brotherhood, supra, the policy provided for indemnity in case of “permanent and total disability of said member, which renders him unable to carry on or conduct any vocation or calling.” The court declined to construe this provision as meaning that no recovery could be had if the insured was able to carry on any vocation whatever, saying “we are unwilling to adopt such a doctrine, the effect of which would be, practically, to reduce all such contracts to nullities and to make them the instruments of extracting dues from policyholders, with
It appears from the evidence in the instant ease that before the injury the insured was an active business man engaged in several occupations: (1) farming, (2) sawmilling, (3) selling hogs and cattle, and (4) buying cottonseed and selling fertilizer for a named trading company on a salary and commission basis. With regard to the instant policies, the four lines of business should be treated as a unit of employment, and the insured should be considered as totally disabled within the meaning of the policies if forced by his condition to desist from substantially all of the usual and customary duties of such employment. In Metropolitan Life Ins. Co. v. Bovello, supra, it appeared that the insured, in applying for the policy, stated his occupation as ticket-agent, notary public, and musician. In the opinion the court said: “While there is not an entire harmony of views as to the interpretation to be given to contracts substantially like or much similar to the one here, yet we are satisfied the weight of authority is that it was only incumbent upon the plaintiff to show by the fair balance of testimony that he was, by reason of disease or sickness, directly and independently of all other causes, unable, in the exercise of ordinary or common care and prudence, to transact or perform the substantial and material acts necessary to the performance of the duties of each and all of his occupations.” As involving a two-fold occupation;' see Neafle v. Manufacturer’s Accident Indemnity Co., 55 Hun. 111
The fact that the plaintiff attempted for a season to carry on this line of employment, before ascertaining his inability to do so, and refraining from such employment, should not prevent a recovery for benefits thereafter accruing under the provisions of the policies; and this is true even though such employment had been his only occupation. The fact that the insured may not have realized a profit from an occupation engaged in by him would not be determinative of the question of his ability to engage in such occupation for remuneration or profit within the meaning of the policies. On the other hand, he should take his chances of success or failure from ordinary causes the same as other men. But this was not the necessary inference here, since the testimony tended to show that the plaintiff’s failure to make anything out of his employment by the trading company was due to the expense of travel and of hiring help, which he was forced to incur by reason of his disability. But, aside from this, the evidence warranted the conclusion that the plaintiff was unable to engage in the business of farming, or sawmilling, or dealing in live stock; and on the whole . we think the case was one that should have been submitted to the jury under the evidence.
We will now examine two decisions by this court which are mainly relied on by counsel for the insurance company, namely, Parten v. Jefferson Standard Life Insurance Co., 30 Ga. App. 245 (117 S. E. 772), and Whitton v. American National Ins. Co., 17 Ga. App. 525 (87 S. E. 827). The Parten case was based upon a policy which provided in terms that it should be governed by the laws of the State of North' Carolina; and this court in construing the policy followed the decision of the Supreme Court of that State
Judgment reversed.