Connell v. Provident Life & Accident Ins. Co.

On Moti.on for Rehearing

■■ Appellant and appellee have both filed motions for rehearing. We have considered them carefully, but adhere to the views expressed in our original opinion.

Appellant especially contends that we were wrong in holding that the trial court’s definition of total disability constituted reversible error. We shall briefly refer to the decisions cited by the parties which appear to us -to be most nearly in point.

Great Southern Life Ins. Co. v. Johnson, Tex.Com.App., 25 S.W.2d 1093, did not involve the co'urt’s charge. There are some remarks in the opinion which, taken alone, might seem to support appellant’s argument that the definition employed by the court in the present" case was correct, but we do not believe that the opinion as a whole is in' conflict with what we have held here.

The definitions of total disability found in the charges in Aetna Life Ins. Co. v. Allen, Tex.Civ.App., 137 S.W.Zd 78; and in Jefferson Standard Life Ins. Co. v. Curfman, Tex.Civ.App., 127 S.W.2d 567, contained qualifying expressions not found in the definition now before us, and it is our belief that our views are not in conflict with the opinions in those cases. Aetna Life Ins. Co. v. Motheral, Tex.Civ.App., 183 S.W.2d 677, did not involve the precise problem now before us.' Nor do we find anything in the opinion in Winters Mutual Aid Ass’n v. Reddin, Tex.Com.App., 49 S.W.2d 1095, to support that contention that the complained of definition was- correct. .Several of the decisions cited by appellant deal primarily with the sufficiency of the proof to show disability, and are not entirely in point.

To us it seems 'that the case most nearly in point is American National Ins. Co. v. Briggs, Tex.Civ.App., 70 S.W.2d 491, writ dismissed, where a definition much like the one now before us was declared to be er-. roneous, and where the distinction was noticed between policies insuring against disability to perform the duties of any occupation from those insuring against disability to perform the duties of one’s own occupation.

For an extended discussion of the distinction between such policies, and. for citations .of many pertinent authorities, reference is made to 29 Am.Jur., Insurance,, par. 1165, and the same paragraph in the Cumulative Supplement to said volume, and to annotations in 149 A.L.R., beginning at page 40, and in 153 A.L.R., beginning at page 435.

Both motions for rehearing are overruled.