20 S.E.2d 761 | Ga. | 1942
1. An insured is entitled to total-disability benefits under an insurance policy containing a clause that should the insured "become totally and permanently disabled as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit," when he is so incapacitated that substantially all of the material activities of his employment, or any similar employment, approximating the same livelihood, are reasonably closed to him. Inability of the insured to perform one or more of the substantial duties of such employment, if this be less than substantially all such duties, does not constitute total disability under such a policy.
2. Where there is evidence showing that the insured is afflicted with an arrested case of tuberculosis, that he is unable to perform the duties of his employment, which was operating a general merchandise store, without endangering his life, and that he has ceased altogether to perform such duties and has disposed of his business, the verdict finding him entitled to total disability compensation under the clause of the policy quoted above is supported by the evidence. Where, subsequently to the time when he sold his store and ceased performing his duties in connection therewith, he has held a position with the Elks Club, the duties of which require no physical exertion or work of any kind except to see that the servants perform their duties and make purchases of groceries for the club, and permit him to rest regularly in the afternoon of each day, and do not require him to go to the club until 11 a. m., for which he receives $100 per month, whereas his income from his former employment ranged from $100 to $400 a month, he is not performing any substantial part of the duties of his former employment or duties of a similar nature, and can not be deprived of total disability benefits by reason thereof.
There was considerable testimony by doctors introduced by the company, to the effect that he did not have tuberculosis, but since the verdict and judgment in his favor is challenged upon the ground that it is unsupported by the evidence, we need only to consider such evidence produced by the plaintiff as may tend to support the verdict. The insured testified, that the Elks Club made no unconditional promise to pay any stipulated sum for his services, but it agreed that if the earnings of the club were sufficient he would be paid $100 per month; that his duties there required no physical labor, and only such mental work as was necessary to see that the servants performed their duties, and to purchase groceries needed by the club; that physical exercise over several years caused him to have shortness of breath, exhaustion, and headaches; and that he had done no physical work of any kind since he developed tuberculosis in 1928. Dr. Stewart testified for the insured, that he had attended the insured as physician, had examined him almost monthly; that he had a case of arrested tuberculosis; that in his condition he is not able to do manual labor; that his condition had been quiescent for approximately three years; that he could not work in a grocery store; that, aside from lifting heavy articles in performing the duties of a country store-keeper, the inside confinement would do him injury and he would *140 be unable to do the work necessary to keep such store open twelve hours a day; that he could not perform substantially all the duties of a country storekeeper and get by with it; that the confinement would cause another breakdown, and the witness would not advise him to undertake such duties, and he does not believe any other doctor who has watched a tubercular would advise him to undertake it; that he could not stand the confinement with safety, but would finally break down; and that he would take chances with his life, in that he might reactivate the tuberculosis, in which case it would be worse than before arrested. While the insured testified that the Elks Club did not pay him, but that he drew $100 a month out of the club fund, he admitted that on previous trials where he recovered judgments against the defendant in suits for total disability he had testified that he was not being paid anything by the Elks Club. He testified that in the operation of the store he was associated with his father; that his father lived in the house with him, had no family, and took from the earnings of the store only such amounts as were necessary for his support. The earnings of the store were variously placed at from $200 to $400 per month, and the insured testified that he received all the earnings of the store except such as were required and taken by his father.
The trial resulted in a verdict and judgment in favor of the plaintiff, and on review this judgment was affirmed by the Court of Appeals. The case reached this court by certiorari to review the decision of the Court of Appeals. That decision is assailed on two main grounds, to wit: (a) That the Court of Appeals erroneously held that if the evidence was sufficient to authorize the jury to find that the insured had become so incapacitated that he could not do substantially all of the material activities of his employment, or duties of a similar nature, he was entitled to recover, and the verdict in his favor would be authorized; and (b) that the Court of Appeals erroneously held that the verdict in favor of the insured was authorized by the evidence.
1. The proper interpretation of the disability clause here relied upon is controlled by previous decisions of this court. Cato v. Etna Life Insurance Co.,
2. To sustain the judgment against the attack based upon the ground that the verdict was unauthorized by the evidence, there must be evidence that would authorize the jury to find that total disability as defined in division 1 existed. Without here repeating evidence set forth above, it is sufficient to say that the evidence to the effect that the insured had tuberculosis, and that in the judgment of his physician he could not continue his employment without endangering his life, and that he disposed of his store and desisted from the performance of the duties incidental to his occupation, would constitute total disability. The Cato case involved physical disability caused by tuberculosis; and while it was held that the representative of the deceased insured could not recover, the holding was based upon the fact that the insured continued to work and refused to desist therefrom. It was said: "Total disability does not mean absolute physical inability to work at one's occupation, or to pursue any occupation for wages or gain; but it exists if the injury or disease of the insured is such that common care and prudence required him to desist and he did in fact desist from transacting his business." There is no dispute in the present case that the insured did desist from performing the duties of his occupation as a merchant; but it is contended by the insurer that the insured's employment by the Elks Club and the compensation he received therefor show an absence of total disability as above *143 defined. The duties of insured's employment before disability was claimed and the duties of his employment by the Elks Club are so dissimilar that it can not be said that they bear any material relationship. For the purpose of this decision the evidence on behalf of the insured, to the effect that his present employment requires no physical exertion, permits him to remain away from the club until 11 a. m., and permits him to take hours of rest in the afternoon, must be accepted as true, and it shows that he would not be able to perform any substantial part of the duties which he was performing when insured and when his alleged disability arose. The evidence supported the verdict in favor of the insured, and the ruling of the Court of Appeals to this effect is sustained.
Judgment affirmed. All the Justices concur.