53 Ga. App. 1 | Ga. Ct. App. | 1936
The provisions of the Code of 1933, § 38-107, as to matters to be considered by the jury in determining where the preponderance of the evidence lies in a civil case, not
The court charged the jury- “that total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he depends for a living. Total disability is inability to do substantially all of the material acts necessary'to the transaction of the insured’s occupation in substantially his customary and usual manner. Total disability would not exist if the insured could do substantially all of the material acts necessary to the transaction of his occupation in substantially his
The defendant attempted to put in evidence the fact that certain other named persons were able to perform the duties of the same profession as that of the plaintiff (insurance agent) with blood pressure, both systolic and diastolic, as high as or higher than that of the plaintiff. The court excluded this evidence. Even though we should think it had some small probative value, which we seriously doubt in view of the fact that it is well recognized that a particular disease rarely affects two persons in the same way except in death, we do not think that it was reversible error where there was already admitted to the jury evidence to the effect that the plaintiff, even in her present condition, could carry on the material duties of a soliciting insurance agent; and it is thereby
Under the rulings of the Supreme Court in Cato v. Ætna Life Ins. Co., and Prudential Ins. Co. v. South, 179 Ga. 653, supra, and of this court in Prudential Ins. Co. v. Hicks, 52 Ga. App. 311 (183 S. E. 102), followed in Prudential Ins. Co. v. Richardson, 52 Ga. App. 807 (184 S. E. 809), the jury were fully authorized by the evidence to find that the plaintiff was totally and permanently disabled at the time she testified that she ceased the activities of her occupation, which was before the policy lapsed for non-payment of premiums, within the meaning of the terms of the contract in this regard. The fact that she had performed a small portion of her duties, such as receiving applications for insurance, etc., was not conclusive of the fact that she was not totally disabled; nor was her admission, in an application for reinstatement of the policy after the date of the lapse, that she was in good health, conclusive of this question. See N. Y. Life Ins. Co. v. Thompson, 50 Ga. App. 413 (supra). These facts were for consideration of the jury in their determination of the issue whether or not she was totally and permanently disabled. The court did not err in overruling the motion for new trial.
Judgment affirmed.