33 S.E.2d 448 | Ga. Ct. App. | 1945
1. The evidence demanded the finding that the plaintiff was totally and permanently disabled within the meaning of the provisions of the insurance policy sued on.
2. If there was error in the court's definition of permanent and total disability it was harmless.
3. The verdict for damages and attorney's fees was not unauthorized.
Dr. O. C. Woods testified in substance: He had practiced with Dr. Binion, the insured, since 1930. He made an examination of the insured when he quit practicing medicine. At that time he had high blood pressure, an enlarged heart, rheumatism in his wrist, neck, and spine, and had chronic kidney trouble and some hardening of the arteries. At that time in his opinion the insured was totally and permanently disabled. From an examination in the last ten days the insured was still so disabled. The insured had had no conferences with him with reference to operations or treatment of patients since February 14, 1941. Since February 14, 1941, there had been an increase in the number of patients coming to the Richard Binion Clinic which he would attribute to the increase in the population on account of war projects in Milledgeville. He and the insured never discussed business matters. By total and permanent disability he meant so far as practicing medicine was concerned. He would not advise worry or responsibility for the insured. The operating of the clinic part of the hospital is a responsible job. Dr. Charles Fulghum gave similar testimony. The insured's net income for the year 1943 was $33,597.18; his income from the clinic for the months of September, October, November, and December, 1943, was $13,493.85; the income from the hospital for November and December, 1943, was $2,022.62, total, $15,516.47. Total earnings from the clinic and hospital from January 1, 1944, to May 31, 1944, were $21,374.43. The income from these sources from 1929 through 1942 was as follows: 1929, $14,428.73; 1930, $14,429.26; 1931, $9,419.44; 1932, $2,251.21 (the said return showed a loss of $1,822.70 from operating the hospital); 1933, $4,445.07 (the said return showed a loss of $874.26 from operating the hospital); 1934, $12,757.77 (the said return showed a loss of $1,536.34 from operating the hospital); 1935, $3,424.05; 1936, $5,695.59; 1938, $4,083.43; 1939, $15,238.67; 1940, $20,977.10; 1941, $10,605.47; 1942, $12,160.67.
1. There was other evidence, but there was no evidence showing that the insured did any work in connection with the operation of the clinic and hospital except to receive daily reports. Even this activity can not reasonably be related to the insured's putting forth any effort mentally or physically. It would more appropriately be classified as a check on investments rather than active operation of a business. Hiring others to operate a business is not personal *178
operation of the business. The fact that the insured is able to go to his office or place of business for a short time each day does not render disability less than total if in fact he could do no work there. Turner v. Fidelity Casualty Co.,
2. In view of the ruling in the preceding division of this opinion, error in the charge, if any (and we do not hold that there was error), was harmless.
3. The insurance company conceded that the insured became totally and permanently disabled on February 14, 1941, and paid disability benefits from then until September, 1943. In the absence of any explanation why it discontinued the benefit payments, and of the information upon which it acted in so doing, the finding for damages and attorney's fees was not unauthorized as a matter of law.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, P. J., and Parker, J., concur. *179