28443. | Ga. Ct. App. | Dec 5, 1940
Lead Opinion
The court erred in overruling the motion for new trial.
The plaintiff testified: "I am suffering with heart trouble. The first time I noticed it was in the fall of `37. As the result of these attacks I have consulted some physicians. . . My occupation is turpentine operator and farmer. As to what I did prior to March 15, 1938, well, I did perform duties in operating turpentine business and farming. As turpentine operator some of my duties were inspecting, cruising, and estimating timber for turpentine purposes; securing labor and demonstrating to the laborer how work is to be done, and in doing these things it is necessary to walk or ride horseback *866 a great deal. It is necessary often to assist in doing a lot of odd jobs. Other duties are to superintend and assist in burning woods, and keeping them from burning woods as the case may be. This work is very tiring physically. Those are some of the main duties of a turpentine operator. They are not all, however. . . In operating the turpentine business it is necessary to drop in temporarily and assist in moving things that are heavy, or transferring wagon bodies broken down and often seeing it repaired. Much of the time there is not enough help around to do these things. . . I did these things prior to my disability. I farmed prior to March 15, 1938. . . By being a farmer the way I did, I hoed; I plowed when it was necessary and when a hand would be out I would be wanting to carry on some work and probably wouldn't be enough help at the time to carry on some work and I generally helped to do it myself. In addition to that I looked after any hired help that I might have; went in the fields and demonstrated to them how I wanted the work to be done; that is, I mean I take hold of the plow and plow some. . . I haven't done those duties since March 15, 1938. . . On slight exertion I have a tightness in my chest accompanied with misery; pains penetrating my arms at times. Any kind of worry or mental strain affects me. I stated I had pains and also a tightness in my chest. These attacks occur any time when I take exercise that is at all taxing to my strength. . . I have refrained from doing any of these things that would cause me to suffer in that respect. . . Other duties I have performed, I have taken hold of a hack and shown a negro how I would want it chipped. I have taken a puller and shown them how I wanted it pulled, and I would take a scrape and show him how to get the face off of trees. I performed those duties prior to the time I became disabled. In my farming I always raised some livestock. In connection with the farming and livestock I rode horseback in the woods, or walked if I wanted to gather up cattle and hogs and put them in the pens and fields and mark them. I did the marking. I don't do it now because I am not able. I haven't actually herded stock by riding a horse, and also marking cattle, since the early part of 1937. I walked in the woods for the purpose of cruising timber. I refrained from those duties about March, 1938. I was asked by my physicians not to do it." *867
On cross-examination the plaintiff testified: "I was sixty years of age last March. . . I am sole owner of a business I tried to operate myself. . . As to whether I have other business known as Howard and Howard, myself and brother, that is right. I operated that business individually a while and he worked for me, and then I sold him an interest in the business. . . I have the greater interest. . . This business I am operating now, as to how long it has been in existence, I'd say ten or twelve years. . . As to whether I have another business known as Howard and Parker, . . J. E. Parker is my partner and equally interested. He lives on his own property. He don't live on our property. . . As to who looks after my own individual interest, who is my woodsman or boss out there, his name is Yawn. As to whether he is the woodsman and looks after the employees and producer of the gum, he is a man that is on the place. Of course I assist him in looking after the employees. . . My brother looks after Howard and Howard. Parker looks after Howard and Parker. . . As long as I was able to I assisted him. . . I still my gum I have individually at Howard and Parker's, and Howard and Howard's output is stilled up there at a place belonging to my nephew. . . As to whether there are other duties that are not connected with the turpentine places, well, there are some other duties, buying timber to lease, and as to the necessary financial arrangements customarily made once a year with the factor stores. It is necessary that we talk over with Mr. Roney about the program and marketing plans, and new timber purchases, and what amount of cups we have, and that sort of things, each year, and I have been accustomed to going down there and talking that over. . . I do some banking in Glennville; that is my personal business. We don't have any account of Howard and Howard. All of those checks are given against my individual account. I sign practically all of them myself. As to how many acres of land we own, around 12,000. . . I used to go to Atlanta to get mules when I was able. . . As to how many acres I actually farm, . . in the neighborhood of 150 to 175 acres, . . about five or six plows in all. . . I operate it mostly by wages hands now. . . Those turpentine businesses are in operation this year and I expect them to be operated next year. . . I imagine my farm will be operated next year. As to the number of head of cattle, I would say from 150 to 200 *868 head. . . I am a member of the legislature from Long County. I was a candidate for the legislature in 1938, and as a result of that campaign I was elected. . . I visited a little, not much. . . As to whether it was hot at that time of the year, it usually is that time of the year. . . I qualified as a member of the Legislature and served the full seventy days. . . during the session I came home on week-ends. I mostly made the trip by automobile. I mostly came and went with the representative from Wayne County. . . I probably gave attention to some things in connection with my business, I gave some things concerning my business attention. While I was a member of the legislature my brother died, and I was executor of his estate. . . He left about 1000 acres of land individually, and an interest in 8000 acres, and some business property. I discharged my duties in connection with the estate. . . I probably drove my car to Glennville twice last week. I transacted some banking business while there. I went to Ludowici to see Dr. Middleton. The week before we were all down to Savannah. . . I drive around most every day. . . I am the head of my business, I leave that with my partners in the other businesses. . . They have been operating for a number of years, but they are operating now without my assistance. I can't give them the attention I would like to give them."
There was medical testimony to the effect that the plaintiff suffered with heart trouble and should desist from mental or physical strain. The other evidence is substantially to the effect of the quoted testimony of the plaintiff.
Under the rulings of the Supreme Court in Cato v.AEtna Life Insurance Co.,
Judgment reversed. MacIntyre, J., concurs. Sutton, J.,dissents. Stephens, P. J., disqualified.
Dissenting Opinion
The plaintiff was a turpentine operator and farmer. He testified, that as a naval stores or turpentine operator some of his duties were inspecting, cruising, and estimating timber for turpentine purposes, securing labor and demonstrating to the laborers how the work was to be done, and that in doing these things it was necessary for him to walk or ride horseback a great deal; that other duties were in burning woods and keeping fire from his timber lands, and that this work was very tiring physically; that it was also necessary to do a lot of other odd jobs in connection with this business; that he had farmed practically all of his life, and in doing so had plowed and hoed, and that when a hand would be out and it was necessary he went ahead and made a hand and did the work himself; that he looked after his hired *870 help and demonstrated to them how he wanted the work to be done; that he raised stock in connection with his farming, and that in doing this he was required to ride horseback and walk in the woods in gathering up his cattle and hogs, and that he also did the marking of his cattle; that he performed all of his duties as turpentine operator, farmer, and stock raiser prior to March, 1938, but that since that time, on account of his disability from heart trouble, he had not been able to do his usual work and customary duties in respect to these occupations, and had refrained from doing those duties on the advice of his physicians and had not done them since about March, 1938; that any kind of worry or mental strain affected him; and that his heart attacks occurred any time he took any exercise that was at all taxing to his strength, and that he had refrained from doing any of those things that would cause him to suffer in that respect. There was medical testimony to the effect that the plaintiff had angina, heart disease, and had been so suffering since March, 1938; that his condition in this respect was permanent; that he was growing gradually worse; and that any kind of work, physical or mental, requiring exertion would be considered dangerous to a person suffering with heart disease.
The insurance contract sued on provided for the payment of total and permanent disability benefits, and in this respect contained the following provision: "Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit." The disability provision in the present case is controlled by the same principle as ruled in Cato v. AEtna Life Insurance Co.,
While it is true that the plaintiff was interested in and part owner of other naval-stores business, that of Howard and Howard which his brother actively supervised and directed, that of Howard and Parker which was in charge of and looked after by Mr. Parker, and the plaintiff's own naval-stores business was in charge of and directed by his son-in-law, Mr. Yawn, and while the income and returns from his business may not have been materially decreased, still it appears from the evidence that he was unable to do substantially all of the material acts necessary to the transaction of his business and occupation, in substantially his customary and usual manner, since he had been afflicted with heart disease, and that common care and prudence required him to desist, and he did in fact desist, from performing his usual and customary duties as a turpentine operator and farmer. Under the evidence in the present case and the rulings of law as contained in the authorities above mentioned, I am of the opinion that the jury was authorized to find that the plaintiff was totally and permanently disabled, and that the judgment overruling the motion for new trial should be affirmed.