By the group policy, issued to the Pioneer Insurance Club of the Republic Iron Steel Company's employees, December 1, 1929, and the certificate of insurance issued to plaintiff, the defendant engaged to pay to the beneficiary designated by the plaintiff, and named in the policy, $2,000 in the event of plaintiff's death while the policy was in force, and, also, "If any member insured under this policy shall furnish this company with due proof that before having attained the age of 60 years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, the company will pay to such member infull settlement of all obligations hereunder as to suchmember's life, the amount of insurance in force hereunder onsuch member at the time of the approval by the company of theproofs as aforesaid." (Italics supplied.)
The events which mature the policy, according to its provisions, are the death of the insured or his total permanent disability within the meaning of its total disability clause. McCutchen, as Guardian, etc., v. All States Life Ins. Co. (Ala. Sup.) 158 So. 729.1 The total disability clause in the policy sued on is in the exact language of the total disability clause involved in McGifford v. Protective Life Ins. Co., 227 Ala. 588,151 So. 349, and reaffirmed in the McCutchen Case, supra.
Count A of the complaint, on which the case was tried, after setting out in hæc verba said total disability clause, avers: "That on, to-wit, the 5th day of June, 1932, while plaintiff was a member of said Pioneer Insurance Club, and while plaintiff was one of the members of said Club, insured under said policy of insurance, and while plaintiff was, to-wit, 42 years of age, and while said policy of insurance was in force and effect as to the *Page 325 plaintiff by reason of the payment of the premiums due thereon for plaintiff's insurance, plaintiff became totally and permanently disabled by reason of bodily injury, to-wit, injuries to his right leg, back and other parts of his body, to such an extent that plaintiff was, and at all times since said date has been and will at all times in the future be, wholly prevented thereby from engaging in any gainful occupation. And plaintiff avers that on, to-wit, the 15th day of March, 1933,while another group policy of insurance, issued by the defendant to the members of said Pioneer Insurance Club in lieu of said policy of insurance, was in force and effect as to plaintiff by reason of the payment of the premiums due thereon for plaintiff's insurance, and while plaintiff was so totally and permanently disabled as aforesaid, the plaintiff did furnish to the defendant due proof of such disability, and that defendant, after receiving said proof and after plaintiff's demand therefor, failed or refused to pay to the plaintiff the amount of insurance in force under said group policy insurance on the life of the plaintiff at the time of the receipt by the defendant of said proof, to-wit, Two Thousand Dollars ($2,000.00)." (Italics supplied.)
The defendant demurred to this count on the ground that it does not aver that the policy, the basis of this suit, was in force and effect at the time plaintiff furnished proof of his disability, and the demurrer was overruled.
In McGifford v. Protective Life Ins. Co., 227 Ala. 588,151 So. 349, involving the quoted provision in a policy issued by the defendant on the same date and to the same club the policy in suit was issued to, it was ruled that the furnishing of proof of disability by the insured to the company while the policy was effective and the insurance in force was a condition precedent to liability. The holding in that case was reaffirmed in McCutchen, Guardian, etc., v. All States Life Insurance Company, supra.
The provisions of a policy of different import were considered in Ex parte Gilbreath Gray (Prudential Ins. Co. v. Gray), 159 So. 265 (Ala. Sup.)2 from which McGifford's Case was differentiated. See, also, Bergholm et al. v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416.
The furnishing of proof of total and permanent disability while the policy sued on was effective and the insurance was in force as to plaintiff, being a condition precedent to liability, the plaintiff had the burden of averring and proving performance of the condition. Equitable Life Assur. Soc. v. Dorriety, 229 Ala. 352, 157 So. 59; 13 C. J. 635, § 705; Marsicano v. City of Birmingham, 165 Ala. 405, 51 So. 608.
When the averments of count A are construed most strongly against the pleader, the averment that plaintiff "on, to-wit, the 15th day of March, 1933, while another group policy ofinsurance, issued by the defendant to the members of said Pioneer Insurance Club in lieu of said policy of insurance, was in force and effect as to plaintiff by reason of the payment of the premiums due thereon for plaintiff's insurance, and while plaintiff was so totally and permanently disabled as aforesaid, the plaintiff did furnish to the defendant due proof of such disability," falls short of showing that such proof was furnished under the policy in suit, or that the insurance which he seeks to recover was in force when such proof was so furnished. (Italics supplied.)
Assuming that group policy No. 180-G, certificate No. 1762, issued to the Pioneer Insurance Club, December 1, 1932, was in fact a renewal of the former group policy No. 149-G, certificate No. 1762, continuing in full force the insurance on plaintiff's life, with total permanent disability benefits, it is clear that plaintiff failed of compliance with the provision of the policy in respect to proof.
Plaintiff testified, "I asked the defendant for blanks for making claim under my policy. They supplied them to me. Dr. Carraway filled them out and I filled out one myself. * * * I turned them over to Protective Life Insurance Company * * * the defendant in this case"; that they (Protective Life Insurance Company) had not paid him anything; "I believe I turned them over to the defendant about the first day of February last year (1933). I received this letter after I turned the papers in."
The letter was written on a letterhead of "Protective Life Insurance Co., S. F. Clabaugh, Pres., Birmingham, Alabama," addressed to "A. L. Fairley, Secretary" and "Mr. Tom A. Hale" in respect to "G-180-1762," and read:
"We have given careful consideration to your claim for total and permanent disability benefits but the information furnished is not at all conclusive that your present condition is permanent. We would refer you to the clause in your group certificate wherein it *Page 326 must be shown that a disability must be total and must also be permanent before the benefits are available. In view of this, the company is obliged to disallow the claim.
"It is expressly stipulated that by pointing out the above facts the company does not waive, and hereby expressly reserves the right to avail itself of all other defenses it may have to said policy.
"Yours very truly, "A. L. Fairley, Secretary."
The plaintiff also offered as evidence the defendant's answers to interrogatories propounded under the statute. The answer relative to the proof of total permanent disability is: "On March 15, 1933, plaintiff furnished defendant with completed forms, which forms are used to make proof of total and permanent disability, but the forms as completed and furnished by plaintiff did not show that he was totally and permanently disabled. One form was signed by plaintiff in which he stated that he did not know whether his disability presumably would continue for life, and one form was signed by an attending physician in which it was stated that the plaintiff would completely recover. These are the only proofs furnished by the plaintiff."
This is all the evidence showed or tended to show on the question of plaintiff's furnishing proof of his disability. When it is viewed in its light most favorable to the plaintiff, it is clearly insufficient as showing that plaintiff furnished "due proof" that plaintiff had become "totally and permanently disabled by bodily injury or disease," and that he was then or would be "at all times thereafter, wholly prevented thereby from engaging in any gainful occupation" within the meaning of the policy, and it was wholly insufficient to warrant the jury in so finding. Equitable Life Assur. Soc. v. Dorriety, 229 Ala. 352,157 So. 59.
Whether it be the death of the insured or his total disability that matures the contract, the insurer is liable for the full amount of the insurance; in this case $2,000.
In the respect just stated, the policy in the instant case is different from the policies considered in cases heretofore decided by this court involving clauses insuring against "permanent total disability."
In United States Casualty Co. v. Perryman, 203 Ala. 212,82 So. 462, the basis of the suit was an accident insurance policy providing "for the payment to the insured of $25 per week for total disablement, and of $12.50 per week for partial disablement." The question of permanent total disability was not there involved.
Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909,910, was an action on an accident policy insuring the plaintiff against injuries by accident which "shall wholly and continuously disable the insured from the date of accident from performing any and every kind of duty pertaining to hisoccupation, and during the period of such continuousdisability," and for such disability agreed to pay a weekly indemnity. (Italics supplied.)
The Perryman and Plaster Cases hold that "to constitute 'total disability' in the connection used in the policies there under consideration, it is not necessary that an injury should render the insured physically unable to transact any kind of business pertaining to his occupation, but it is sufficient if the injury is such that common care and prudence require him to desist." (Italics supplied.)
Ellis v. New York Life Ins. Co., 214 Ala. 166, 106 So. 689,691, was an action on a policy of life insurance, and permanent total disability from bodily injury or disease, "so that he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than 60 days * * * then. * * * One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal toone-tenth of the face of the policy and a like sum on each anniversary thereafter during the life time and continueddisability." In that case it was held that the holdings in the Perryman and Plaster Cases did not apply, and a judgment on a directed verdict for the defendant was affirmed.
In New York Life Ins. Co. v. McLean, 218 Ala. 401,118 So. 753, 754, the action was on a policy of life insurance in all respects the same as that involved in the Ellis Case. The evidence showed that the plaintiff was a physician; that he owned a farm; and that he was physically unable to do manual labor. It was there held: "If the insured's physical condition, as a result of the disease, is such that common care and prudence requires that he desist from transacting business, and his condition is presumably permanent and continuous, he is permanently and totally disabled, within the meaning of the contract, though he may not be physically disabled to performoccasional acts connected with his business, profession, oroccupation." (Italics supplied.) *Page 327
The plaintiff in Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665,133 So. 707, 708, 79 A.L.R. 852, was a physician, and the action was to recover "the monthly benefits or income alleged to be due for 'total and permanent disability' by reason of disease." By the policy the defendant engaged to pay "a monthly income of $10.00 for each $1,000.00 of insurance." In the policy the insurer reserved the right to require proof from time to time of continued total disability and stipulated that: "If the insured shall fail to furnish such proof, or if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease."
The sole question in that case was whether or not the plaintiff's condition prevented him from "doing substantial and profitable work in his profession." The trial court had directed a verdict for the defendant which was followed by judgment, and this judgment was affirmed.
New York Life Insurance Co. v. Torrance, 224 Ala. 614,141 So. 547, like the Blue Case, was an action by the insured, a physician, to recover monthly benefits stipulated for in case of total permanent disability, to be paid during the continuance of such disability. In that case there was no question as to the plaintiff's total and permanent disability at the time suit was brought, but the question was whether or not the disability arose before the plaintiff reached the age of sixty years. While there was a general discussion of the authorities, it appears from the headnotes of the case, as well as from the body of the opinion, the court did not undertake to lay down any formula as to what was necessary to constitute total and permanent disability under that contract. The holding was, that plaintiff, by the undisputed evidence, had failed to show that his disability antedated his sixtieth birthday, and therefore the defendant was entitled to the affirmative charge.
On the second appeal in the Torrance Case, 228 Ala. 286,153 So. 463, where the same question was involved as in the first appeal, it appeared from the opinion of the Court of Appeals (153 So. 458) the plaintiff on the second trial had offered additional evidence on which the Court of Appeals held the case was for the jury. Reviewing the opinion of the Court of Appeals, on certiorari, it was observed: "The terms of the policy are that total disability must be such as that it 'thereby permanently and continuously prevented (him) from engaging in any occupation whatsoever for remuneration or profit.' If his physical or mental condition was such that hisattempt to engage in an occupation was not accompanied with theability to do so in its substantial features with the skill andaccuracy which such business demands, in the usual andcustomary manner, he is totally disqualified from pursuing thatoccupation, though he does undertake to carry it on, but, indoing so, such want of skill and ability are manifest." New York Life Insurance Co. v. Torrance, 228 Ala. 286, 153 So. 463,464. [Italics supplied.] This utterance was approved in the more recent case of Equitable Life Assur. Soc. v. Dorriety,229 Ala. 352, 157 So. 59.
The policy, the basis of the suit in Jefferson Standard Life Ins. Co. v. Simpson, 228 Ala. 146, 153 So. 198, 199, insured the life of the plaintiff for $3,000, and carried a provision for "total and permanent disability" upon proof of which the insurer agreed to waive further payment of premiums and pay the insured "Fifty Dollars ($50.00) per month during the period ofhis said total and permanent disability," a provision quite different in legal effect from the provision for total and permanent disability in the case at bar. The court, in treating the refusal of certain special charges, observed: "This court, in passing on provisions in policies similar to the oneinvolved, has followed the majority rule to the effect 'that the "total disability" contemplated in insurance policies does not mean, as its strict literal construction would require, astate of absolute helplessness, but means inability to do substantially all of the material acts necessary to the prosecution of insured's business or occupation, in substantially his customary and usual manner.' " (Italics supplied.)
The "majority rule" therein referred to, to state its general effect, is that insurance contracts subject to more than one construction are construed against the insurer and favorably to the insured, though the full lexicographical significance of words must be ignored. However, this rule does not authorize courts to rewrite the contract for the parties or refine away the terms of the contract expressed with sufficient clearness to convey the intent and meaning of the parties. New York Life Insurance Co. v. Torrance, 224 Ala. 614, 141 So. 547; McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; 14 R. C. L. 926, § 103; Pennsylvania Fire Ins. Co. v. Malone et al.,217 Ala. 168, 115 So. 156, 56 A.L.R. 1075; North River Ins. Co. of City of New York v. Waddell, 216 Ala. 55, 112 So. 336, 52 A.L.R. 838; R. C. L., 8 Per. *Page 328 Supp. p. 3708, § 103; Pocket Ed. 8 R. C. L. Per. Supp. p. 979, § 103.
The effect of the holding in John Hancock Mut. Life Ins. Co. v. Beaty (Ala. Sup.) 162 So. 281,1 is that proof showing "total permanent disability to perform the work of the occupation followed through life, and, so far as appears, the onlyprofitable occupation for which she [plaintiff] is suited bytraining and experience, is the disability covered by suchpolicies." (Italics supplied.)
The manifest intent of the contract in this case is that the total permanent disability maturing the contract must be such as to disqualify him, not only from engaging in the occupation, trade, or profession he was engaged in when the disability developed, but he must be physically disabled from doing and performing the substantial features of any gainful occupation, within the range of his mental and educational capacity, with the required skill and accuracy of any such occupation, and such disability must be presumably permanent and continuous. 1 C. J. pp. 465, 466, §§ 167, 168, and 169; Metropolitan Life Ins. Co. v. Foster (C.C.A.) 67 F.(2d) 264.
The evidence in this case shows that the only disability suffered by the plaintiff was a broken leg, above the knee, with delayed union of the broken bone, and flabby muscles from nonuse and sensitive sciatic nerve; but the testimony of the medical witnesses is to the effect that the bone has completely united and healed, and by use his recovery will be permanent and complete, except his leg will be short. The extent of his disability, according to the medical testimony, is about 35 per cent.
In these circumstances, the plaintiff shows only partial permanent disability, and was not entitled to recover. Metropolitan Life Ins. Co. v. Blue, supra; Ætna Life Insurance Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252.
Reversed and remanded.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur in the opinion.
KNIGHT, J., concurs in so much thereof as holds that the complaint was subject to demurrer, that the plaintiff did not show compliance with the condition precedent as to furnishing proof, and that defendant was entitled to the affirmative charge, and dissents as to what constitutes total disability; his view on that point being hereinafter stated.
THOMAS, J., dissents.
1 229 Ala. 616
2 Ante, p. 1.
1 Post, p. 638.