Life & Casualty Ins. Co. of Tennessee v. Jones , 112 Miss. 506 ( 1916 )

Smith, C. J.,

delivered the opinion of the court.

This is an action instituted by appellee in the court of a justice of the peace to recover of appellant a balance alleged to be due him upon a health , and accident poliey issued to him by appellant. The cause was tried by the judge below without a jury, on an agreed statement of facts, and judgment was rendered for appellee.

The policy provides for a weekly allowance of seven dollars in case of an accident to appellee, and that “ accident benefits will only be paid when the injury is of such a nature as to disable the insured from work of any kind for seven consecutive days,” etc. It contains no reference to the occupation of the insured. It appears from the agreed statement of facts:

That appellee “was injured while he was engaged as a train porter, and that the company paid him seven dollars per week from 2d day of March, 1914, to the 28th day of September, 1914, at which date the defendant refused to pay the plaintiff any further sum for said injury, and their reason was that the plaintiff was not disabled from said injury from the performance of work of any kind.

“That the plaintiff was not able at the time further payment refused for the performance of the duties as a train porter.

“That the plaintiff had been serving as a train porter for thirty or forty years, and was getting old and less supple at the time of his injury than he had been in former years.

“That the plaintiff was able to do light work, and had applied to the railroad company, his'employer, for light work, and also applied to the defendant for work at the time payment was refused, and plaintiff’s physicians so certified in his certificate to plaintiff’s proof, that the plaintiff was able to do light work.

“That the amount already paid plaintiff for said injury is two hundred and three dollars; that the amount due plaintiff, if anything, is the sum of eighty-four dollars.”

We do not think that the words “work of any kind” contained in the clause of the policy hereinbefore set out can be limited “to the usual and ordinary work which insured was engaged in at the time of his injury” as contended by counsel for appellee, but we will assume for the sake of the argument what seems to be admitted by counsel for appellant, that this language may be limited by a construction to work of any kind for which the insured was fitted by nature, experience, or training. Nevertheless the judgment of- the court below must be reversed; for it appears that appellee was able to do and had applied for work, and it does not appear that this work was not of the character that he was fitted by nature, experience, and training to do. In order for him to recover it must appear that he was disabled from doing work of the character contemplated by the policy, the burden of proving which was upon him. That he could do light work only is immaterial for the question, even under this limitation upon the words of the policy,, is whether he was able to do work, either light or heavy, for which he was fitted by nature, experience, or training. Whether he is unable to work, within the meaning of the policy, when he can do a portion, but not all, of some particular character of work for which he is fitted, is not presented to us for decision by this record.

Reversed; and judgment here for appellant.

Reversed.