New York Life Ins. Co. v. Stoner

jury was and the At the trial waived opinion. trial filed a memorandum opinion is follows: a comment as “ * * * * * * was the defendant (he court, however, during walked in trial) progress and we observed carefully. (It knowledge made fa- repeated by mous the oft tale that one can comprehension of obtain a much clearer appearance elephant of and nature an seeing by hearing than de- the learned scriptions of even four eminent men Becker, Columbia, science). William H. Mo. We observed the defendant care- Clark, courtroom, (Boyle Boggs, fully. Paul Pe- using G. E. M. walked into He J. terson,' cane, Lang, Jr., only limp, slight and Howard B. all of a but with and with Mo., Brown, Templeton Columbia, expressions pain. appeared H. St. Mo., Cooke, Joseph, man, vigorous, healthy strong, Louis H. New a whose manner, City, brief), appellant. appearance suggested York for features and intelligence average above that farm- Phillip, Benjamin (B. Joseph, St. er Smith, Kaufmann, L. Francis and R. E. Culver, Mo., Joseph, brief), all of St. “The whole truth of the matter is that appellee. injury for result the defendant has a permanently ankle; stiffened ex- Before THOMAS and VAN VALKEN- painful, use tensive of that ankle is now BURGH, DEWEY, Judges, Circuit extensively it cannot used both be- Judge. District pain cause of because of the stiff- ness; surgical medical treatment DEWEY, Judge. District possibly entirely pain remove ele- appellant, In this action the New York ment defendant’s ankle condition. Company, Insurance asked de- only business in which the defendant judgment claratory on four similar com- experience training had has life and bination insurance able, farming. physically He is not because cies. consequences, per- of his and its were issued to Lewis K. require form farmer’s those tasks which Stoner, appellee, who claims to have been more or continuous and full less use of both totally permanently disabled since handicap.” That is the of his feet. extent June 29, 1931, result of an as a sustained this With statement startling wagon struck the when an automobile impression first learn that had the court riding. which he totally permanently found the insured Payments for total were made disabled. waived premiums company to Summarizing the court con- 29, 1933. This action September covers the governing cluded the be as follows: period benefits for the right between declaratory judgment “To have that it January May 29, until presum- account of liable on total permanent disability provi- ably permanent The total under a policies, except four sions of the amounts, such as are involved in this case insurance provisions per- company prove identical. The must (cid:127) controversy greater weight preponderance are as follows: tinent testimony do appropriate insured can mode here re credible that the most work; quired plaintiff prove, prove oc- on he can occupations is, ly, cupation, any of those affirmative the insured during question engaged which men livelihoods them- earn families, perform- profit. himself some business selves their substantially con- ing such of its duties as confidently seriously The insured and occupation; or that he can stitute that under laws of Missouri contends that the engage for remuneration or abundantly the the facts establish total is, by profit, of 'those businesses least, insured, sub- disability of or the at earn livelihoods themselves men support ultimate stantial evidence to the families, performing their himself such and by found fact the trial court. substantially of its constitute that duties as At the time of insured’s the accident he Finding business.” and made one ultimate operating was and farming acres. This 29, 1936, May follows: “From of Fact as farms, acres, consisted of two one of 200 January until to- the defendant was Farm, known as the Estate which he rented tally presumably permanently disabled mother, from by his the balance owned by injury by reason’of the received June operated They grain himself. as one 29, 1931”, declaratory judg- and entered a and stock a injury farm. The was from plaintiff ment that the is liable to the defend- resulting fall bones of lower two his left permanent disability ant for total and bene- leg being jerked joint. out of ankle period question. fits for the September prior Sometime he The here contends manage operate started to two (1) concluding court erred: In farms in a manner hereinafter described plaintiff proof bore the burden to show physical and since that time his condition totally that the defendant was not same, except has been about the policies; (2) within slightly ankle is smaller than it The was. law; (,3) the conclusion of find- in the ankyloscd completely ankle is painful and is ing of fact. to some extent walk at times. He can plaintiff’s sought As evidence to establish block or aid of two his cane and engage that the insured was able to or did can drive his automobile without excess profit in a business for pain. he walking When overdoes the during question, will we limit experiences exercising pain often he se- phrases our discussion to those sleep vere that he night. cannot at in- cies. jury permanent. His mind is not affected injury only and has been at evidence submitted was time. insured, corroborated his brother Since his he not been able to physicians. do the actual labor connected with farming the injury but hires it done. Prior to the Appellant, New York Life Insur employed constantly he two men on Company, assumed ance the burden of the farm but since the he has been proof estopped deny and is it operate it with farm hand required to assume that burden. employment account a tractor and would not We want be understood machinery. prior modern Since sometime holding however that it was incumbent 29, 1933, September has continued to prove negative, plaintiff a double operate farm of 305 grain acres as a plaintiff from as the inferred the court’s buys livestock, and stock farm. He cattle require plain- To of the law. conclusion others, hogs, produce feeds the prove negative a double tiff often of the farm them and sells the livestock. change result in an unwarranted Mo., goes Joseph, buys to St. live- agreement. plain provisions of an buys and also stock livestock neighbors purchase and in “Whenever establishment of an livestock requires proof personally. he deals with them affirmative case a material He drives Joseph, allegation, party negative who makes car to Omaha and St. distance allegation miles, proving has the burden of where trades at the appropriate it, especially stockyards. where the most He trades and sells livestock proof af establishing through mode of the same commission men who opposite allegation.” 22 firmative C. handled his stock transactions before he p. injured. J.Evidence, I5, Sec. He looks after the livestock is, unambiguous personally sees it contract. Plain and farm, meaning. acquainted given be must its keeps himself informed (cid:127) but, whole; tract should construed as a on the farm. with what is constructions, open in so far to different two highway between the There is the insured must most favorable to mostly bordered farms are farms and the * * * adopted. rule However, automobile drive his roads and he can lan- perversion ‘does not authorize machine anywhere mowing binder or that a guage, powers of inventive the exercise into the go, and drives and he does this ambiguity purpose creating his men about the fields and consults with ” where none exists.’ doing crops method and manner Farm operates Estate the work. He considering occupational purely mother, pays agreement under an with his group has construed expenses, including taxes operating they provisions somewhat insofar as similar insurance, expenses of him- living and the perform any work or inability related to to mother, profit self and his and makes a any occupation being ambiguous which he divides her. construction, requiring judicial important requires The law becomes as the court’s have held construction adopted. finding conclu- of fact was based most favorable to the insured “any duty” sion every as to the law. So the phrase judicially “any construed mean to interpretation In the of these insur every -duty,” phrase substantial and the contracts, applicable ance “permanently, continuously, pre- wholly Mis highest been court of decided performing any vented from work for.com- souri, required fol the federal courts are pensation profit”, ambiguous held low Tomp its decision. Erie R. R. Co. v. open judicial rel. construction. State ex 64, kins, 817, 304 58 U.S. S.Ct. 82 L.Ed. Metropolitan Allen, Ins. 337 Life Co. v. Mo. 1188, 114 A.L.R. 1487. 525, 470; Metropolitan 469, 85 S.W.2d phrase That court has not construed the Hostetter, 589, Ins. Co. v. 338 92 Mo. S.W. policies used in containing insurance 122; Co., 2d Aetna 340 Heald v. Life Ins. provision “disability shall be consider 379, 1143, 1149, Mo. 104 S.W.2d 383. ed total whenever the is so insured case, supra, * * * wholly prevented apparently adopts of Missouri engaging in business for remu occupational perhaps rule in in group phrase, profit”, neration or or the “if the cases, pre- insurance as follows: “The rule insured engages in business for re vailing jurisdictions most profit, muneration or no income contemplated disability by an ‘total accident payments shall be made premiums nor policy, life or the clause waived.” cy interpreta- mean, does its literal consistently It has held that where the require, help- a state of absolute tion would language of an policy plain insurance and lessness; rather, con- unequivocal, there is room for construc templated inability to do all means the sub- tion given and the words must be their necessary material stantial and acts usual meaning. and natural ex State rel. insured’s, or, many prosecution of the Casualty 38, Cox, Com. Co. 322 v. Mo. 14 instances, any, occupation, business or 600; Prange S.W.2d v. International Life customary and usual manner.’ Headnotes Co., 651, 523, Ins. 329 Mo. 46 S.W.2d 80 A. in 98 Annotations A.L.R. The lead- 950; Benefit, L.R. State ex rel. Mutual cited therein from this state are ing cases Trimble, Health & Accident v. Ass’n 334 Casualty Co., States 113 v. United James Mo.App. 920, 685; Mo. 68 S.W.2d State ex rel. Met 127; 125, 622, Foglesong 88 S.W. ropolitan Hostetter, Life Ins. Co. v. 338 America, Brotherhood of 121 v. Modern 589, 112; Mo. 92 S.W.2d Heald v. Aetna 240; Mo.App. 548, 97 S.W. Bellows v. Co., 1148, 1143, Life Ins. 340 Mo. 104 S.W. (Mo.Sup.) Co. 203 Ins. S.W. Travelers’ ” 379; 2d State ex rel. Prudential Ins. Co. v. 978.’ Shain, Mo.Sup., 127 S.W.2d discussing the court was In this decision occupational policy. In Wendorff v. Missouri purely State 363, customary 318 man- 1 “in a and usual S.W.2d 57 The words substantially A.L.R. as “to said: the same “In the con- mean ner” policy, Giving struction of decisions of the perform.” rules to be fol- lowed well policy Court Missouri their broadest settled. is a interpretation, might interpretation be said An that to constitute sidering phrases engaging in insurance simi- business issue, they might profit lar to the one here in con- and phys means that he himself must phrase ically strue to the most favorable perform the duties of say interpretation the business as substantially constitute that be, contemplated should would do violence t'o means, inability substantially terms of agreement. Unwar all the substantial and material acts neces- ranted results follow from such insured’s, sary prosecution or construction, engaged if man any, business. a mercantile business and could do all the substantial and material acts practically This construction is the same proper in carrying on of that given by as that courts Federal interpretation under .would be consider “totally term in war disabled” contained totally ed disabled if he were unable do policies. risk insurance Lumbra v. United every employee work clerk and States, L.Ed. U.S. S.Ct. that business. 492; Cir., Green, 8 69 F. United States v. 921; Rice, Cir., 2d United States v. 72 F. judge phrase, trial decided that the 676, 677; States, Thompson 2d v. United engaging business for remuneration 897; Cir., Weeks, 65 F.2d United States profit, specific was not limited to the Cir., 62 F.2d United States v. business in which the engaged insured was 546; Harth, Cir., 541, 8 61 F.2d United policies when him, the were issued to as 624; Cir., Vineyard, States v. 5 71 F.2d expression did he use the perform- “himself Nickle, 873, Cir., United 8 70 F.2d States v. ing such of its substantially duties as 879; Rye, Cir., 10 70 F.2d United States v. business”, might stitute that it indicate that 153; 151, Sumner, 150, 6 United States v. necessary was physical- for insured to be Cir., 69 F.2d 770. ly perform any able to all the acts of busi- distinguished ness as from all nec- the acts appellee The contends that the construc- essary carry any to on business. go phrases tion should and the in- terpreted as limited to the business or oc- wording quoted The law from the cupation engaged in insured .was case, supra, necessary is “acts policies when the insurance were issued. * * * prosecution any, of business,” interpret- phrases And should be and not all acts of business. per- that the insured must ed interpret To phrases these as mean substantial and material acts of form the ing necessary that it was for per-' insured to own efforts. his business form all any business, the acts or duties of appellate some of may be It would do repeated violence to the pro of Missouri have so construed simi- courts nouncements of Mis Court policies. lar insurance souri, that where the is unequivocal, room there is no for construc bound to follow We not the de are tion and given the words must be their reasoning of the intermediate cisions and meaning. usual and natural Erie R. R. v. appellate courts Missouri. supra; Tompkins, v. White-Phil Graham is true in transacting It some 21, 31, Co., 27, 56 80 296 U.S. S.Ct. L. lips of the details in business which the 24; 20, Hale, 4 102 A.L.R. v. Ed. Beals engaged insured has been he is discommod 865; 54, 37, 37, 45 11 L.Ed. U.S. How. up by injury, ed slowed but this 132, Moonier, Cir., 94 F.2d Hudson prevent does not condition him he is Maryland 138; Casualty Co., Hudson v. does, able, pain per without excess Cir., 22 F.2d 791. form all material and substantial duties agreement obviously carry is not re The to the business in which he is now on. specific engaged. to total to a himself stricted He testifies that he is per inability occupation, but includes to perform duties of this business. occupation, any work, any engage or form He detailed the duties that now per profit, operation for any business there is in forms in the these farms and nothing indicate that the Court to he was able to did testified adopt such a con has or is nothing Missouri all of them. There record contrary weight which is to struction to indicate that was done ex authority. Annotations 98 A.L.R. strength, pain See or with cess of excessive A.L.R. 857. to his health. is, 29, engaging devoting is in—that at- March 1934. That case was tried and carry- appealed to, prosecuting City Ap- to the Kansas tention effort Court peals. Co., do profit. New ing for Here we Stoner v. York Ins. on—a business Mo.App., speculate whether he S.W.2d The suit not have to 784. second brought material duties of his in the of Platte do all such Circuit Court therein, necessary County for by engaging (transferred trial to Daviess made County) conclusively on recover policies establishes that two to the evidence period 29, May engaged April busi- he does do them. Is he appealed ness? his business Were asked what This case was tried was, say thing City Appeals. of to the last he would think Kansas Court engaged in busi- Stoner v. New York would be that he is not App. ness. S.W.2d 167. third suit on the two declared constrained find the evi- We are County brought suit Platte conclusively in- dence establishes that County Buchanan recover Circuit substantially only can but does sured not May May perform substantial material 29, 1936. prosecution acts engaged period. present which the insured covered suit profit. for declaratory judgment May 29, such business returns is from will judgment January 7, be reversed direc- court to enter a declara- tions the trial my majority opinion In view the errs tory requested by appel- judgment as (1) stated, correctly issues lant. (2) the evidence in reference to the Reversed. sustained the insured and its effect is minimized, (3) the Missouri misin- THOMAS, Judge terpreted (dissenting). ignored, Circuit (4) em- undue phasis placed fact during my opinion finding decision period inquiry under the insured was able majority contrary the is law of the the successfully operations. farm direct his policies in suit case. The are Missouri con minority opinion This I being a shall direct governed by and their construction is tracts attention briefly these matters without York Missouri law. Turner v. New undertaking to them length. demonstrate at Co., Cir., 8 New Insurance F.2d Levin, Cir., York Life Ins. Co. v. F.2d 1. The Issues. —To sustain the burden of 403, proving 405. totally that insured was not the presumably permanently disabled within the injury resulting The dis- insured’s meaning policies during the the period ability 29, occurred on 1931. From June issue, in plaintiff the introduced in evidence 29, 1933, September that date until in- the policies the transcript company surance conceded that the disa- .testi mony County taken in the trial in Daviess bility perma- presumably “total was e and which City was before th Kansas policies, nent” within Appeals Court of by considered paid provided insured the benefits opinion 1048, court in in 232 Mo.App. payment premiums. waived therein and 114 S.W.2d 167. latter policies Since date the here policies provide company The litigated. much A suit have been case in- pay agrees monthly benefits and to waive volving has them here before. New been premiums receipt “upon proof due Stoner, Cir., Ins. York Life Co. 92 F. totally the insured is and presumably per 845, In 2d that case this court held manently age sixty, disabled before as defined provisions policies “a that under the ” ** The *. recites: definition in favor of judgment the insured for one “Disability shall be considered total when did bind period of time the insurance the insured bodily ever .is in company action for an benefits wholly jury or he prevented disease that is subsequent period.” for a In addition to any performing work, from from three different have that case suits been any occupation, or from engaging brought Stoner in the state courts profit.” business for remuneration subsequent to recover benefits for Missouri brought policies was -periods. applications The first suit on the In his for the in- policies in farmer, the Circuit Court of Bu- stated he was four sured that he operated farm, County grain to recover chanan benefits owned stock 29, September previous occupation. he no ffor-the had had permanent than home for in calcification are attached to the pital tion. chair ankle inches above for a bones bone in his circulate ankylosed. pellee this case tempt of suit and appellant engaged in the application of the. It works problem if the burden were issued.” issues Such appellant but were that “The pation or and the prove, struction [of and from which no could other pellant grain work, this case.” operating sued. stated defendant has been After 2. The Upon In operating other plaintiff, appellant, alleged two month; engaged its normal and are issued. a distinction joint. The for a in his ankle were broken. The month; by holding than in was business and and made majority appellant offered no evidence to all related to the phrases petition the trial the distinguish in the foot and properly duties “occupational on the Injury having months. He was then in bed out that the engage in stock farm three.months; injured at the time the objection appellee contends infection. The blood month; injured injury insured Infection a The the ankle. The ankle became occupation in which then on one crutch application leg was broken about when grain and said “the exact in effect operating when the are covered and the destruction of interpreted “occupation” for a opinion policies] theory that the insured is- and muscles foot and Missouri law since engaged work, obtains a livelihood.” operation bone and do between evidence offered and claim, the insurance June then to a burden which the Its not declaratory the burden is majority avoids developed insurance” painful. stock erroneously Effects. —The dealing with the for insurance should warranted. then in on of operation question counsel policies was in ankle that the then clouds of the lower two crutches prosecution and limited to the time he farm. insured 1931. The proof and cane recognized he does duties are go for any occu- not There judgment get does resulting appellee. a wheel the hos- issues were policies. policies insured policies insured larger by ap- states func- profit profit main tried cold. farm four The “the con- was not the provision ap- leg at- is- at instances, struction most helplessness; customary stantial and material acts the ‘total templated tation would be policy does not dent disability rule so dering a consideration in is to the effect that a United States in tract ing, must be tion, and in insurance contracts Ins. Co. 614, 267 S.W. viz.: one before open ing is to ‘any there is an With reference to the rule language the court said: given their usual and natural meaning. 602, 603. Such is State ex rel. Commonwealth struction and the words Cox, ^[622] able the insured from date of accident and prevent him every duty walking. nouncement of the sidered souri in a case of this character is and he can do no even sleep this state and in most other as to automobile, S.W.2d prevailing unequivocal about with one of and policy, The Missouri Law. —The latest to different ground. 322 Mo. at loc. cit. 629 utterly If injury “wholly v. Aetna provided collecting v. Allen make so, be determined night every duty,’ disability adopted. means any, nothing in to two blocks in a He can not walk on clause is concerned and us, or the his ankle swells and he can not pertaining to his equally rather, an insurance require, useless This from performing business or mean, Casualty in most usual manner.’ 382. The favorable ct inability “ * * * there is interpretations, 14 S.W. provision disability [88 short, contemplated al., insured’s, or, State ex rel. condition well settled premium that the total respect would render the as its literal provision cane. He can walk S.W. rule, to, by judicial a state of pain. jurisdictions The rule must Co., employed so practically no room the same effect as (2d) ambiguous, necessary an assured and labor. continuously policy occupation, but to that rule clause far effective. The that where the 125]); do Casualty of disability day, Court of Mis- 340 Mo. He can drive be without ren- rough jurisdictions occupation.” construction all the sub- such as the as the total by an Headnotes permanent, (James prevailing exception, there construed its mean- but v/hen construc- interpre- in Mo.App. of Security absolute found for con- must be benefits loc. cit. loc. cit. so said is that phrase speak- or un- many a life Co. v. acci- i. con- con- pro- dis- e.,

8S1 member, disability and lead- nent total said 789. The Annotations in 98 A.L.R. carry are which him renders unable to ing this state cases cited therein from Co., calling,’ voca- Casualty any vocation or conduct v. United States James Mo.App. 127; designated, Foglesong being tion the insured 88 S.W. any- America, meaning, 121 should be construed as v. Modern Brotherhood thing, calling vocation in which he Mo.App. Bellows v. 97 S.W. might became at the time he (Mo.Sup.) S.W. Travelers’ Ins. Co. authorities) court supplied). (citing disabled.” The (Italics 978.” case, approved then rule James supra, case, was decided The Bellows supra, permanent and total Supreme of Missouri Court performing means to be “disabled from sub- followed approved and court therein stantially- occupation in the stated 1905, supra, case, the rule the James policy.” disability, total as used in an approved by was cy, Having assured been does mean “that case, literally Court in and absolutely unable to the Bellows rendered and James cases, supra, part occupation, Foglesong long of'his have been ac- cepted by performing Appellate he was substan- and correctly tially occupation policy.” stating Courts of Missouri as stated applying Missouri S.W. authorities [203 983.] interpretation governing the of all substan- Foglesong case referred tially disability provi- similar forms of case, supra, opinion in was decid- sions.1 City Appeals ed the Kansas provided 1906. The contract that case The evidence introduced payment of showed benefits “substantial and material proof permanent prosecution” carry- “of the and total acts oper- ing (plaintiff), the said member which ren- on the and business of carry him ating ders unable to on or conduct the insured’s farm 305-acre consisted calling.” parts, largely vocation of which The insured two right leg physical They farmer. His was afflicted with mental. the other livestock, permanent (a) plowing, disease which first confined at horses handling corn, listing, sowing, reaping, to his months. There cultivating bed three improvement harvesting crops, walking husking was some that he could hay, corn, grain, pitching scooping walk corn and after a while with the crutches kinds; (b) aid of a cane. shown di- “It was work of all direct- farm, men, work ing supervising deciding rected the be done on hired performed harvest, plant buying that he some labor himself”. and sell- when wagon hauling grain. ing drove the corn livestock and Before the coal, and did carrying he directed his sons in insured was able do and has been the farm. these Since the duties. ‘perma- policy, always said: to do “The will unable Burns v. Ætna viewed on certiorari ex State rel. 185; App., Metropolitan Hostetter, 123 S.W.2d Stoner v. New Ins. v. Life Co. Co., Mo.App. 1048, 589, 112; York Life Ins. 232 338 Mo. 92 S.W.2d Buis v. 167; Metropolitan America, 114 Ins. Co. of S.W.2d Smith v. Prudential 229 Mo. Co., App. 127; 190, Mo.App., Life Insurance 108 77 Kane S.W. S.W.2d v. Met 995; Pogue Metropolitan ropolitan Co., Mo.App. 649, 2d v. Ins. Life Ins. Life 228 Mo.App., Co., 144; 826, 107 Barton 73 reviewed on certiorari S.W.2d S.W.2d Metropolitan Co., Metropolitan v. Life Insurance Mo. State ex rel. Life Ins. Co. 889; App., 469; Allen, 525, 103 Corcoran v. Mo. 85 S.W.2d v. 337 S.W.2d Metropolitan Rickey Mo.App., Co., Co., New York Life Ins. v. Life Ins. 229 93 1027; 88; Mo.App. 1226, New York Life 71 S.W.2d Hurt S.W.2d Stoner v. v. Equitable Co., 784; Soc., Mo.App., Mo.App., Ins. Life Assur. 90 S.W.2d 53 1101; Co., Mo.App., Katz v. Ætna Life Ins. v. Union Central 90 S.W.2d S. 797, Co., Mo.App. 618, 44 W.2d affirmed in 340 Life Ins. 226 104 S.W. 379; Metropolitan 250; Farmer Frost S.W.2d v. 2d v. Central Business Men’s 628; Ramsey Mo.App. Ass’n, Mo.App., Co., 230 246 S.W. v. Life Ins. 85 S.W. 235; Young Metropolitan Co., Accident, & Ins. 2d Life General Fire Life v. Mo.App. 236, 763; Mo.App. 823, Co., 142 Albert Ins. 229 S.W. 84 S.W.2d Metropolitan Metropolitan Mo.App., Co., Moss v. v. Ins. Mo.App. re 95 S.W.2d S.W.2d light farming. He can evidence should be viewed in the most acts appeal has the injury farming

now since occurred favorable to this and ever the entirely divorcing been able to the from consideration operations, direct part supervise requir- work. insured’s but he can not buys that ing physical occupation in broker, through my opinion but he labor. This livestock ^ go yards inspect-the views of the stock substitution a federal stock can do so. law Missouri. never Stoner, pointed completely paralyzed out the Heald case the court even if occupation of insur- able that the business or still ambu- be driven about in an lance, might “double occu- operate ed cannot be considered as a pation well continue to composed separate successfully does; farm as as now occupation argument might functions.” The business or still be advanced that * ** unit, involving “wholly in- prevented “a he was must be considered as terrelated by duties, normally carried engaging performance profit.” all the substantial or It is to avoid of a the harshness application duties involved in it.” literal of the terms kind this that has led the courts of Mis- appeals suits on On both these jurisdictions souri and those of other City Appeals Court of cies Kansas hold that is total when the insured testimony de- and reviewed the sidered the cisions of unable to all the substantial Appellate courts occupation material acts of his business or in question of of Missouri held that customary To usual manner. this permanent disability presumably total was a qualification rule is added that question. jury In a similar case aris- the insured’s business must not be viewed Kentucky where the law is the same ing as in Missouri and up a double made of separate language of in which the functions but must be considered as unit equivalent to in suit was involving interrelated duties. testimony in refer- policies and the these same, injury very majority much the prin- apply ence to the Circuit Court refuse to these Appeals of the Sixth Cir- ciples facts in the instant I case. question held of total am of cuit that under the law of Equitable jury, Life Assur. Missouri amply was for the the evidence sustains the Bomar, Cir., finding Soc. of United States district court. evidence F.2d judgment appealed from should be against to sustain verdict was sufficient affirmed. company. the insurance VALKENBURGH, VAN Judge Circuit present Judge Otis of the case dis- In the (concurring). court, deci- without reference to the trict courts, found that the I concur heartily Judge Missouri sions of the DEWEY’S proof opinion the burden and feel plaintiff did not sustain that the conclusion he has requires that Stoner was total- reached additional support. it assumed and However, during I ly permanently agree cannot Judge view within the of the THOMAS’ of the Missouri in issue law de- finding highest I do not think clared court of policies. that state. Dewey, Judge As stated record can be held under the Missouri “there is noth- “clearly 52(a) ing to indicate that erroneous”. Rule law to be Procedure, adopt Rules of Civil U.S.C. Missouri or would of the A. a con- contrary which is weight section 723c. struction authority”. Of course this gov- contract majority con- Conclusion.—The law, Missouri erned apply and this court must healthy because insured is a clude by law high- the state as declared injury except limb, to his for the is man court. est state distances, can his walk short drive able to now, pain follow distance without undue as before for some It must the deci- car Tompkins, successfully oper- Railroad to direct sion in Erie Co. v. and is able farm, of his the result S.Ct. L.Ed. ations must neces- U.S. A. 1487,that, statute, absent state finding he is L.R. federal sarily follow that a that “total- constrained courts are to the con- within the ly disabled” placed upon by They not be sustained. arrive struction state policies only by emphasizing when such construction is conclusion these courts clear- at by I ly do not this mean im- in contravention to the rule that the established. to facts operations substantially he did before ply of Missouri as he that disability injured, physical participation permanent with less would construe this part, employed, on his claimed and with less men clause of the insurance contract and, expresses it, as he with more modern by appellee. I it could do not think machinery. pur- He does all the substantial do so. is sufficient It part material on his acts essential poses of has done so. this case it never that operations engaged. which he is There majority opinion charged It is that course, any are, humane modifications correctly issue. On the does not state the disability of total too strict construction appar- contrary, clearly the broad issue is provisions. Judge Woodrough, sitting in highest is in this ent. It whether the Court, following District announced will to its con- to adhere state continue rule, approval of this the full received that, sistently of decision declared rule court, Rice, Cir., 72 F.2d United States contracts, contracts, in all disability’ “By a loc. cit. 678: ‘total unambiguous must be necessarily is meant not the man is flat that given plain meaning; or whether its bedridden, on his back all, unable to move at exercise “perversion language, or the assuming good means a faith but it that purpose of powers for creat- inventive and continued endeavor ef continuous shall ing ambiguity where none exists” an part his is such as fort on his to approved. Wendorff v. be authorized and impossible carry to on render it Co., 318 State Life Insurance Missouri 363, substantially continuously gainful occupa a 99. This insurance 1 S.W.2d contract ‘substantially gainful By occupation’ tion. exceptional clearness what states occupation produces is meant appellant company to do. With undertook living having gains man a fair decent pains liability confined its explicit by ‘continuously station, regard his is the insured cases where necessarily carry is not meant on’ work, only performing any prevented many per every day, work hours should occupation following also “from but day, should that he carry on but re- engaging say, assuming, fairly good Ias faith ef pur- profit”. obvious muneration or fort, assuming but not such strain and scope pose limit re- was thus to its jeopardize endeavor as would his health or majority opinion sponsibility. The does not life, carry but he should on with rea erroneously “attempt distinguish between regularity, and fair having sonable in mind occupational insur- suit way occupations in which are carried policies”. The distinction stands out ance system country”. on under our in this policies. The clearly face these rule, Under this and under construc- purpose of insurer make that distinc- tion announced Court of would be tion is evident. difficult It Missouri, appellee is now an oc- descriptive language more of that frame cupation engaged and is in a business for only majority opinion purpose. The seeks profit remuneration and within the terms of contract made. give effect to the the total clause. If the conditions application this insurance cov- In his appellee were such could carry requested to state exact erage, when substantially gainful occupation because replied, oper- full, “owns and duties might ap- of his the situation be as and stock farm”. It true grain ates contends, pellee is not the case having of proof the burden “the by' here. As said this court in United theory case tried this the insur- Harth, Cir., States v. 61 F.2d 546: “occupation engaged in ed busi- presumed any apprecia- “It operating grain farm”; ness of and stock degree ble is attended dis- so he is. There is no trouble about the least, or, comfort, at inconvenience pain, If evidence, by burden proof. handicap discharge the nor- produced, whomsoever discloses the true activities of life. If such mal conditions' situation, judgment go should accordingly. be deemed sufficient to re- warrant Complainant introduced evidence that es- covery under terms policy, of a war risk beyond dispute, undisput- and was tablished ed, precision degree with which then appellee was, during period in disability, necessary for recovery, question, following an en- wholly unnecessary. been defined business for gaged in therefore, approve terms of recovery within the “We cannot profit; insurance, conducting express clause. these contract of and cru- obviously greater weight testimony have been of the cial terms of which the occupations those met”. may men earn liveli- Appellee far recovered from his has so enough can and does hoods. It is that he operations, carrying on his that he is follow one for remunera- such course, sub with some but inconvenience profit. tion and stantially injury. Ac as did before his I regret feel con- It is with much cording appellee’s theory, such re to my asso- disagree strained covery impossible would be in premises, ciates the matter is but remained, appreciable effects of that importance only the soundness thereby be disregarding distinction contracts, integrity of insurance temporary partial disability and tween I generally, of contract construction permanent disability. Appellant, and total impelled express my have felt to add indulgence, continued with commendable opin- Dewey’s Judge currence in excellent disability payments, beyond perhaps ion, disposition cause. necessary period, appellee’s until condition became and certain. is manifest There irony con measure the fact this favor duct is adverted as a concession recovery in case. appellee’s able to this Appellant, contesting payments, rights. within acted its contract Of a similar situation court said Fidelity Guaranty United States & Co. v. McCarthy, Cir., 33 A.L.R. F.2d THE HELEN L. person to-day, may “A 1447: be disabled FISHERIES, Inc., BAY v. RED BLUFF year now, and in without JURJEV. condition, change physical dis not be No. 9383. A may abled. one-handed man not be able to-day, year surgery Appeals, Ninth Circuit Court Circuit to-day may have overcome some to perform Feb. extent his be part of some the substantial duties of a appellee’s If surgeon. hand remains years come, for the same condition it might work, surgical he could do some might be he could not. it That question of fact to determined for the in for which seeks recover demnity. remains in the That hand same condition is not conclusive that disability also continues”. New York Life Stoner, Cir., Insurance Co. F.2d prevent length In order to undue to his quoted Judge Dewey large- has not testimony. ly record, from the how- ever, support overwhelming lends to his is, judg- conclusion —in fact there our

ment, disagreement no room its judge opinion, in his weight. trial majority quoted opinion, of this per- supplied convincing us a court, has view of the condition sonal judgment of being the the ma- It insured. appel- in favor of jority that the evidence disputed question leaves no lant facts, Rule 52 of the Rules of trier application. Procedure is without Civil prove Nor

Case Details

Case Name: New York Life Ins. Co. v. Stoner

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 19, 1940

Citation: 109 F.2d 874

Docket Number: 11450

Court Abbreviation: 8th Cir.