190 S.E. 531 | W. Va. | 1937
The plaintiff, Ruby Rubenstein, instituted this action in assumpsit against the defendant, Metropolitan Life Insurance Company, on the total disability clause of a life insurance policy. To a judgment in favor of the plaintiff in the amount of $607.50, based upon a jury verdict, the defendant obtained this writ of error.
The declaration, which was filed in statutory form, alleged, among other things, that the plaintiff was totally and permanently disabled and that claim for said disability *369 had been made and proof thereof furnished to the defendant.
In addition to pleas of non-assumpsit and non-liability, defendant filed a specification of defense, alleging, among other things, that proof of total and permanent disability had not been furnished as required by the policy, and that at the time of the institution of suit and at all times since the plaintiff was able to perform work and engage in business for compensation or profit. No written reply or replication to this specification of defense had been filed by the plaintiff prior to the trial. On the first day of the trial, an objection having been made to the introduction of testimony on behalf of the plaintiff, bearing on the furnishing blanks for proof of claim by the company, plaintiff's counsel notified the court and opposing counsel that on the following day they would tender a written replication to the specification of defense. On the day designated, the plaintiff filed, over defendant's objection, a replication to the specification of defense, alleging that the plaintiff had made demand on the defendant for the blanks upon which to make a proof of claim; that the defendant had not furnished the blanks and at all times denied the claim of the plaintiff for disability benefits, whereby the defendant had waived its right to demand proof of claim and was estopped from defending said action on the ground that proof of claim was not filed. Defendant's counsel then moved for a continuance on the ground of surprise, which motion was overruled by the court. Exceptions were taken to both rulings of the court.
The provisions of the policy of insurance sued on, relating to disability benefits, read:
"METROPOLITAN LIFE INSURANCE COMPANY * * * Hereby Agrees, that upon receipt by the Company at its Home Office * * * of due proof, on forms which will be furnished by the Company, on request, that the insured has, * * * become totally and permanently disabled, as the result of bodily injury or disease *370 * * * so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability, * * * Pay to the insured, * * * monthly income of $10 for each $1,000 of insurance, or of commuted value of installments, if any, under said Policy;" and further, "if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease, * * *." (Italics supplied.)
The plaintiff, aged 55 years, lived at Thomas, West Virginia, where he owned a meat and grocery store. He also owned a farm about seven miles from Thomas. About the middle of April, 1935, he developed an inflammatory condition of the gall bladder, which failed to respond to medical treatment. He was taken to a hospital at Cumberland, Maryland, where, on April 19th, he underwent an operation, the purpose of which was to drain the gall bladder. In this action, brought on October 22, 1935, the plaintiff claims that from the time of his operation, his physical condition was such as to bring him within the total and permanent disability clause of the policy.
A good deal of testimony, both medical and lay, was introduced on behalf of both parties bearing upon the plaintiff's physical condition, both before and after the operation. The witnesses who gave the medical testimony were Dr. Harry Bolton and Dr. John H. Miller, called by both the plaintiff and defendant, Dr. W. E. Whiteside, a witness for defendant, and Dr. Samuel Weisman, a witness for the plaintiff. Time will not permit a detailed summary of this medical testimony. Dr. Bolton, who attended Rubenstein at his first sickness and took him to the hospital for the operation, testified in part that he would not classify Rubenstein as totally and permanently disabled; that Rubenstein would not be fit *371 for hard manual labor; that he has been improving since the time of his illness; and that he could manage and supervise his farm and store and do the ordinary running around; that it would be a rather indefinite time during which the plaintiff's condition might last; and that he was unable to say if plaintiff will improve. On cross-examination, this witness defined total and permanent disability from a medical standpoint: "If I am to interpret it literally, my understanding of total and permanent disability would mean a man could not do anything for the rest of his life, anything at all. That would be my idea of permanent and total disability, would be my interpretation at that time." Dr. Miller testified in part that the plaintiff was not totally and permanently disabled; that he was not disabled for any of the lighter duties of managing and overseeing his farm and meat market; that plaintiff was able to get around and look after things as a normal man; that the percentage of disability was thirty, forty or fifty per cent, less than fifty probably. On cross-examination, this witness adopted the medical definition of total and permanent disability as given by Dr. Bolton; and when asked as to probability of improvement, he testified: "It is possible he will continue to improve, and it is possible he may not." Dr. Whiteside stated, among other things, that at the time he examined Rubenstein, the latter had a partial disability; that such disability should gradually decrease; and that plaintiff was not totally disabled. When asked whether the amount of disability plaintiff had would remain permanently, Dr. Whiteside replied: "It is pretty hard to decide. I have seen men get along under the conditions of that kind and apparently get back into usual work and do ordinary work, and I have seen cases where subsequently they have had to have an operation." Dr. Weisman testified that he did not think plaintiff would be able to undertake his usual or former duties of farming or butchering or any form of physical exercise because of the gangrenous gall bladder; that any undue exercise may cause a new eruption which would cause peritonitis; that plaintiff is totally and permanently *372 disabled and will continue until the gall bladder is removed.
The lay witnesses testified variously as to plaintiff's physical condition before and after the operation. Testimony was introduced that plaintiff was able to do as much supervising in the butcher shop and on the farm, as he had done prior to the operation; and that he was able to do, and had been doing, a good deal of physical work in connection therewith. Other witnesses, however, state that although plaintiff had tried to work, he was unable to do anything; that when he leaned over to pick up any object, he would fall over like he was drunk; that he would get nervous and sweat; that his sister and wife had to run the business; that Ronald Gainer did the most of the butchering. The best summary we can make of the evidence on the question of plaintiff's disability is that it conflicts to such an extent, the trial court was unable, as a matter of law, to determine whether it preponderated in favor of either party. That being so, it was clearly the province of the jury to determine this issue of fact between the parties. Thus we answer the issue of fact raised by the ninth assignment of error, which was taken up and discussed under point seven of plaintiff in error's brief. For convenience in the treatment of the several other assignments, we shall refer to the points by number, as re-stated in plaintiff in error's brief.
Point one is that the plaintiff's replication to the defendant's specification of defense should not have been filed on the second day of the trial, or, if filed, the defendant's motion for a continuance should have been granted. Under Code,
Defendant's counsel takes the position that the evidence as to wavier of the proof of claim is insufficient. They say there was no denial by the insurance company of liability such as would constitute a waiver of proof of claim. However, we think otherwise. Under date of October 2, 1935, the defendant wrote to Rubenstein as follows:
"We have carefully studied the reports in connection with your claim. * * * We regret to inform you that the facts and evidence submitted to, us do not appear, in our opinion, to establish a claim that could be allowed under the terms of your policy at this time. * * * In the circumstances, we, of course, cannot favorably consider your claim. * * * (Signed) E. J. Spellman, Supervisor."
Again, on November 9, 1935, defendant wrote to the plaintiff as follows:
"This supplements our letter of October 9, and refers to yours of October 4. * * * We could *374 not, as we previously informed you, favorably regard your claim because it was the medical opinion that you are not totally and permanently disabled, but rather that only a temporary disability exists. Resumption of work was estimated in a few weeks' time. * * * (Signed) E. J. Spellman, Supervisor."
These letters, we think, are decidedly strong in their denial of the defendant's liability under the policy. Also bearing on the question of waiver, plaintiff's counsel, under date of October 15, 1935, wrote the defendant requesting that blanks be furnished without delay for making proof of loss, if such further proof be required. No blanks were ever sent by the company in response to this request for them. Defendant objected to the introduction of a carbon copy of this letter, in the absence of an early demand for the original. The carbon copy of this letter was admissible for two reasons: First, because it was a duly authenticated carbon copy. Fayette LiquorCo. v. Jones,
Under the second point, the defendant relies upon the admission of plaintiff's testimony to the effect that he was advised by three different doctors that another operation was necessary. This evidence was clearly inadmissible. However, this testimony bore very little on the plaintiff's present physical condition. Its effect was greatly diminished by the testimony of Dr. Weisman that an operation was necessary, which fully corroborated the substance of the hearsay testimony. 3 Am. Juris., 581, sec. 1028, note 17. Counsel cite Cook v.Coleman et al.,
The admission of the letter from defendant to plaintiff's counsel of October 28, 1935, is also assigned as error, because it was dated after suit was filed. This letter is more favorable to the defendant than it is to the plaintiff, as it suggests that there has not been an unconditional denial of liability. Therefore, its admission was not prejudicial to the defendant, and does not constitute reversible error.Walker v. Strosnider,
As the third point, defendant's counsel say that instruction No. 2 in regard to waiver of proof of claim was not supported by the evidence, and therefore, was erroneous. We have already discussed the question of the evidence bearing on the waiver of proof of claim. This assignment of error, we think, is without merit.
In plaintiff's instruction No. 3, relied upon as the fourth point, the court instructed the jury that "an insured is entitled to the protection which he buys and for which he pays." The part of instruction No. 3, just quoted, is an abstract statement of law. However, it is a correct statement of the law. Wade v. Mutual Benefit and Health Ass'n.,
The defendant's fifth point requires a review of the provisions of the policy bearing upon total and permanent *376 disability. Defendant's counsel say, under this assignment of error, that plaintiff's instructions Nos., 1, 2, 3 and 5, are erroneous in that they state in the disjunctive the occupations which, if the plaintiff was unable to perform, the jury should find their verdict for him. Plaintiff's counsel take the position that because a part of the policy as to employment is in the conjunctive and another part in the disjunctive, the policy is ambiguous, and therefore, should be construed most favorably to the plaintiff. The policy's provisions, however, disclose that there is no ambiguity in the disability clause. The policy provides, in effect, that the liability will be paid if the plaintiff "become totally and permanently disabled * * * so as to be prevented thereby from engaging in any occupationand performing any work for compensation or profit." In a later provision, the policy reads that "if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease." This earlier part of the policy, above referred to, covers, in express terms, all occupations and work. The latter provision is in the disjunctive and necessarily so, because it is a defeasance clause, providing for a defeasance when the insured shall be able to perform any work or engage in any business. On this point raised by counsel, the policy is clear. Therefore, the construction, under no condition, must be in contravention of its express terms. In other words, the instructions in question, to be sustained, must be correct in themselves, in the light of the provisions of the policy and the evidence.
The instructions are objected to on the ground that the plaintiff's claimed total and permanent disability is predicated upon his disability "to engage in a practical manner in useful work, whether his accustomed vocation or another * * *." Counsel take the position that this part of the instruction is in the disjunctive; that it will permit a recovery in the event that the jury should find either that the plaintiff was unable to carry on his own vocation, or another vocation. We agree with counsel *377
that if this instruction permitted the jury to find defendant liable in the event that the plaintiff was unable to carry on his own vocation without any disability as to all other vocations or work, the instructions are erroneous, and prejudicially so. Jones v. Connecticut General Life Ins. Co.,
The disability clause of the policy provides benefits in case the insured shall "become totally and permanently disabled, * * * and that said disability has already continued uninterruptedly for a period of at least three months, * * *." In addition, the policy contains a defeasance clause to the effect that with the ceasing of disability, the benefits shall cease.
Defendant's counsel, under their sixth point, say that instructions Nos. 1, 2, 5 and 6 are erroneous in that they direct the jury to find for the plaintiff on the theory of temporary disability.
Plaintiff's instruction No. 1, according to defendant, defines the term "total and permanent disability," so as to make it applicable only to "total disability." Under this definition, it is contended the jury could find that an insured afflicted with a temporary illness, such as influenza, was totally and permanently disabled. This *378 instruction is stated in the abstract, but it is incomplete. We think, however, it is cured by the definition of total and permanent disability contained in defendant's instruction No. 9, and running through the other instructions.
The objection to plaintiff's instructions Nos. 2 and 5, under the sixth point, is that the jury is directed to find for the plaintiff if they believe the disability "has continued uninterruptedly for at least three months * * *" and "until the bringing of this suit." Counsel say that the trial court confused the three-months provision in the policy with a somewhat similar provision in the case of Triplett v. EquitableLife Assurance Society,
We are fully aware that a bad instruction will not be cured by a good one. Ward v. Ward,
Defendant's counsel further complain that the letters, relied upon by the plaintiff for the purpose of showing denial of liability and thereby of proof of claim was waived, were written in the month prior to the bringing of this suit. And not until the letter of October 15, 1935, written by plaintiff's counsel, was any demand made for the furnishing of blank proofs of claim. It is therefore contended that the verdict of the jury in the amount of $607.50 made up as shown by the bill of particulars for six months' disability benefits from April 19, 1935, to October 19, 1935, in the amount of $600.00, and interest in the amount of $7.50, cannot be sustained. We are cited to the case of Hayes v. Prudential Ins.Co. of America,
From our examination of the record and briefs, we find no prejudical error. Therefore, the judgment of the trial court is affirmed.
Affirmed. *380