DocketNumber: No. 13129.
Citation Numbers: 82 S.W.2d 414
Judges: LATTIMORE, Justice.
Filed Date: 3/15/1935
Status: Precedential
Modified Date: 1/12/2023
The policy provided for total and permanent disability benefits to an insured who "has become so disabled as a result of bodily injury or disease as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit."
The issue submitted to the jury inquired if plaintiff was "incapacitated from performing the usual tasks of a workman by such injury." *Page 415
We therefore inquire whether such submission fairly encompasses a reasonable construction of the language of the policy. Manifestly, a literal enforcement of this clause would practically nullify it. No person could qualify for compensation under it unless he were totally paralyzed and even such a one might get a side show job on the "midway." The courts, therefore, have attempted to work out a fair construction bearing in mind the situation of the parties and the recognized objects of the parties in making the contract. Hefner v. Fidelity Co.,
The language of the charge is in substance and almost verbatim as approved by several earlier cases which arose under the workmen's compensation acts. Article 8306, § 10, R. S. Western Indemnity Co. v. Corder (Tex. Civ. App.)
"In substance, the jury is instructed that, if they find J. E. Reddin is suffering from impairment of his feet of such nature as renders him unable to perform all labor and work necessary to be done to successfully follow the occupation of a tenant farmer or barber and all other substantial occupations open to a laboring man, then the said Reddin would be totally disabled within the meaning of the question. This statement is clearly erroneous. Commonwealth Bonding Casualty Ins. Co. v. Bryant (Tex. Sup.)
"Judge Ryan, in the case of Great Southern Life Ins. Co. v. Johnson, supra, held: `A policy requiring payment for total disability ordinarily is not one of indemnity against loss of income but against loss of capacity to work. 6 Cooley's Briefs on Insurance (2d Ed.) 5536. "Total disability" is necessarily a relative matter, and must depend chiefly on the peculiar circumstances of each case and on the nature of the occupation or employment *Page 416 and the capabilities of the person injured. It does not mean absolute physical disability of the insured to transact any kind of business pertaining to his occupation, but exists if he is unable to do any substantial portion of the work connected therewith. Id. 5539.' This assignment should be sustained." In that case the application showed the insured to be a barber and had been a tenant farmer.
An examination of the opinion of Justice Funderburk in the Reddin Case, which opinion was the basis of the writ of error which brought that case before the Supreme Court, shows that the Court of Civil Appeals held that "the loss and disability against which the indemnity is provided in this contract relate to the occupation in which the insured is employed at the time of the sickness or injury resulting in the loss or disability." Winters Mut. Aid Ass'n v. Reddin (Tex. Civ. App.)
The payments were not due on this policy until three months after proof of loss was furnished the appellant. There is a disputed fact issue as to when this notice was given. No issue thereon was submitted to the jury, but the court gave appellee judgment for monthly payments beginning with the date of injury as the date of notice. We believe this to be error. Appellee in his brief requests that in the event we so find, we do not remand the cause but reform the judgment so that the first payment be due three months after March 28, 1933, at which latter date the appellant admits receiving proof of loss. Accordingly, the judgment of the trial court is reformed to award appellee judgment against appellant in the sum of $1,536.30, with interest at 6 per cent. per annum from January 3, 1934.
As so reformed, the judgment of the trial court is affirmed at the cost of appellee.
The costs of the trial court are taxed against appellant except that the attorneys' fees, which are reduced to the sum of $270, and in said amount are a part of the $1,536.30, aforesaid.
The motion is overruled. *Page 417
Commonwealth Bonding Cas. Ins. Co. v. Bryant , 113 Tex. 21 ( 1922 )
Bishop v. Millers' Indem. Underwriters , 254 S.W. 411 ( 1923 )
Fidelity Casualty v. Joiner , 178 S.W. 806 ( 1915 )
North American Acc. Ins. v. Miller , 193 S.W. 750 ( 1917 )
Winters Mut. Aid, Circle No. 2 v. Reddin , 31 S.W.2d 1103 ( 1930 )
Georgia Casualty Co v. Ginn , 272 S.W. 601 ( 1925 )
Western Indemnity Co. v. Corder , 249 S.W. 316 ( 1923 )
Metro. Life Ins. Co. v. Worton , 70 S.W.2d 216 ( 1934 )
Sims v. State , 41 Tex. Crim. 440 ( 1900 )
Fidelity and Casualty Co. v. Getzendanner , 22 Tex. Civ. App. 76 ( 1900 )