Cato v. Ætna Life Insurance , 164 Ga. 392 ( 1927 )

Hines, J.

(After stating the foregoing facts.)

The -¿Etna Insurance Company, on April 10, 1920, issued to Hogansville Mills, the predecessor of the New England Southern Mills, a group policy insuring the lives of the employees of that mill. At that time C. J. Cato was an employee of the Hogansville Mills. On April 10, 1930, a certificate of insurance for $800 was issued to him under said policy; and on April 10, 1921, another certificate for $100 was issued to him thereunder. These certificates were issued under- and subject to the terms and conditions of said policy. The certificates issued to employees under this policy were subject to cancellation when they quit the service of the employer who took out the policy of insurance. In pursuance of this provision these certificates were canceled on January 14, 1922. The present suit was brought by the administrator of the insured, to recover the full amount of the above certificates, and was predicated upon the proposition that the insured had become totally disabled from pursuing any occupation for wages or profit prior to the cancellation of said certificates by the employer. At the close of the evidence the court directed a verdict for the defendants, and to this direction and judgment the plaintiff excepted upon the ground that it was contrary to law.

If a verdict in favor of the defendants was not demanded by the evidence, then the court erred in so directing. If there was an issue of fact as to whether the insured had sustained a total disability which prevented him from pursuing his occupation of a weaver, the court should not have directed a verdict, but should have left the matter to the decision of the jury. In determining this question, we must first determine what constitutes a total disability within the meaning of the provision of the policy upon this subject. This provision is as follows: “If total disability of any employee entitled to insurance, under the schedule of insurance contained in this policy, begins before the age of 60, and if due proof be furnished the company after such disability has existed for a period of six months, and if such disability presumably will during lifetime prevent such employee from pursuing apy occupa-r tion for wages or profit, such employee shall be deemed to be totally and permanently disabled within the meaning of this policy.” Hnder this provision, when does a total disability exist? Policies of insurance will be liberally construed in favor of.the object to be accomplished, and provisions therein will be strictly construed against the insurer. Johnson v. Mutual Life Insurance Co., 154 Ga. 653 (115 S. E. 14); Penn Mutual Life Insurance Co. v. Milton, 160 Ga. 168, 171 (127 S. E. 140). But the contract of insurance should be construed so as to carry out the true intention of the parties. Civil Code (1910), § 2475. The rights of the parties are to be determined by the' terms of the policy, so far as they are lawful. The language of the contract should be construed as a whole, and should receive a reasonable construction, and not be extended beyond what is fairly within the terms of the policy. Where the language is unambiguous and but one reasonable construction of the contract is possible, the court must expound it as made.. Yancey v. Ætna Life Insurance Co., 108 Ga. 349 (33 S. E. 979); Wheeler v. Fidelity &c. Co., 129 Ga. 237 (58 S. E. 709); 1 C. J. 417, § 43.

Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he must depend for a living. Total disability is the antithesis of partial disability. One is the opposite of the other. Taylor v. Southern States Life Insurance Co., 106 S. C. 356 (91 S. E. 326, L. R. A. 1917C, 910); Gordon v. U. S. Casualty Co. (Tenn.), 54 S. W. 98; Commercial Travelers Mut. Acc. Asso. v. Springsteen, 23 Ind. App. 567 (55 N. E. 973); Sawyer v. U. S. Casualty Co. (Mass.), 8 Am. L. Reg. N. S. 233; Pacific Mutual Life Ins. Co. v. Branham, 34 Ind. App. 243 (70 N. E. 174). It follows as a necessary consequence that the insurer is not liable as for a total disability when the accident or disease has merely prevented the insured from .doing as much in a day’s work as before. Such lessened earning capacity may be a case of partial disability, but not a case of total disability. Travelers Mut. Acc. Asso. v. Springsteen, supra; 1 C. J. 463, §§ 163, 164. But when the insured is incapacitated from performing any substantial part of his ordinary duties, a case of total disability is presented, although he is still able to perform some parts of his work. U. S. Casualty Co. v. Hanson, 20 Colo. App. 392 (79 Pac. 176); Travelers Mut. Acc. Asso. v. Springsteen, supra; Neill v. Order of United Friends, 78 Hun, 255. The courts in most jurisdictions hold that “total disability” is inability to do substantially all of the material acts necessary to the transaction of the insured’s business or occupation, in substantially his customary and usual manner. Order of United Commercial Travelers v. Barnes, 72 Kan. 293 (80 Pac. 1020, 82 Pac. 1099, 7 Ann. Cas. 809); 14 R. C. L. 1315, § 491; Young v. Travelers Insurance Co., 80 Me. 244 (15 Atl. 896); Lobdill v. Laboring Men’s Mut. Aid. Asso., 69 Minn. 14 (71 N. W. 696, 38 L. R. A. 537, 65 Am. St. R. 542); James v. U. S. Casualty Co., 113 Mo. App. 622 (88 S. W. 125). Total disability does not mean absolute physical inability to work at one’s occupation, or to pursue any occupation for wages or gain; but it exists if the injury or disease of the insured is such that common care and prudence required him to desist and he did in fact desist from transacting his business. • It is sufficient if the insured’s sickness was of such a character that ordinary care required or authorized him to desist and he did desist from performing the labors incident to his occupation; in such circumstances total disability exists. Lobdill v. Laboring Men’s Mut. Aid Asso., supra; Young v. Travelers Insurance Co., supra; Hohn v. Interstate Casualty Co., 115 Mich. 79 (72 N. W. 1105).

If the insured had quit pursuing his occupation of a weaver on account of his disease, then, under the. evidence of the medical experts that it was unwise for him to work in the condition of his health, it would have been for the jury to say whether ordinary care required him to abandon his occupation, and whether he was totally disabled, under the principle of law that these matters are ordinarily questions of fact for the jury. Hutchinson v. Supreme Tent, 68 Hun, 355 (22 N. Y. Supp. 801). But while the insured was afflicted with this disease, he did not abandon his occupation as a weaver. He continued to work as a weaver, and worked as such at the Hogansville Cotton Mills up to July 1, 1921, when that mill shut down on account of lack of orders. There is no direct evidence that he did not make full time and earn full wages up to that date. Dr. Harvey testified that to the best of his recollection he examined him in the spring or early summer of 1921, that he possibly examined the insured before July 1, 1921, and that the last time he saw the insured in Hogansville the insured was suffering like any other patient would from pulmonary tuberculosis in the advanced stage; that a man in the advanced stage of tuberculosis was not physically able to work; and that he did not think the insured was able to work in a cotton mill; but that if the insured actually worked, he would not say that he was not physically able to work, but that it was unwise for him to work. When this physician last saw the insured in Hogansville is not stated, and it does not appear that this condition of the insured had existed for six months prior to January 14, 1922, when the policy of insurance was actually canceled by the insurer, under its terms, because the insured had quit the service of his employer. The son of the insured, who is the plaintiff in this ease, testified that after the mill at Hogansville shut down, the insured stayed at Hogansville for six or seven weeks; that he moved the insured from Hogansville to LaGrange, where the insured did no work for a while, on account of his condition; that when the insured came to LaGrange he was weak and in a rundown condition, had a cough, was suffering from tuberculosis, and that this condition continued until his death; but this condition of the insured’s health according to this testing was for a period of less than six months prior to January 14, 1922. On cross-examination this witness testified that he did not know how many weeks the insured worked at the Unity Cotton Mills. On September 14, 1921, the insured was employed as a weaver at the Unity Cotton Mills, and appeared upon the weekly pay-roll of that mill for September 24, 1921, and on each weekly pay-roll thereafter up to and including March' 25, 1922. After the latter date he did not work for a period of three weeks. He worked for said mill for the week ending April 22, 1922, and each succeeding week until May 20, 1922. From September 24, 1921, to January 14, 1922, that mill was operated 651 hours, and the deceased worked there during all of that period, except 48 hours, and earned during this period $101.50. He worked at piece-work, was a competent weaver of long experience, and the average weaver, working at piece-work, earned forty cents an hour. He thus earned during this period a little over 42 per cent, of what a competent, experienced weaver could have earned at the work which he was doing. From January 14, 1922, to May 20, 1922, the insured worked for the same mill as a weaver at piece-work. During this period this mill was operated 830 hours, and the insured worked 555 hours of said time and earned $76.20, or something more than 34 per cent, of what a competent, experienced weaver, working at piece-work, could have earned for the time he worked. During tbis period be worked for about one third of the time the mill was in operation. During this period, however, his certificates of insurance had been canceled. During the period that his certificates were in force the insured worked more than ninety-two per cent, of the time the mill was in operation, and earned more than forty-two per cent, of what a competent and experienced weaver, in full health, could have earned. In these circumstances we think that a finding was demanded that the insured, prior to January 14, 1922, had not sustained a total disability. During that time his loss of time was less than eight per cent, of the average wages earned by competent, experienced weavers in full health. • Conceding that his loss of time and loss of wages were due to the condition of his health, the evidence does not make a case of total disability which had existed for a period of six months prior to the cancellation of the policy. This being so, we are of the opinion that the court did not err in directing a verdict for the defendants. Judgment affirmed.

All the Justices concur.