The trial was had on count A, added by way of amendment, declaring on a group policy of insurance.
Provisions of the policy exhibited by that pleading are: " '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 in full settlement of all obligations hereunder as to such member's life, the amount of insurance in force hereunder on such member at the time of the approval by the Company of the proofs as aforesaid.' "
Defendant pleaded in short by consent, "not indebted"; that "plaintiff did not furnish the defendant with proof that he was totally and permanently disabled while the group policy, which insured him against total and permanent disability, was in force."
The proofs made on the company's forms furnished by it on application of the plaintiff, for the purpose of giving the required formal notice, were not offered in evidence. It is admitted that plaintiff filed with defendant such proofs made by himself and a physician. He was claiming for disability under the contract. The policy required that he "furnish the company with due proof." It has been held that such a statement of facts, reasonably verified, as if established in court, would prima facie require payment of the claim. Carson v. New York Life Ins. Co., 162 Minn. 458, 203 N.W. 209; Equitable Life Assur. Soc. v. Dorriety (Ala. Sup.) 157 So. 592; 33 C. J. § 665; 14 R. C. L. 507; Joyce on Insurance, § 3290. I am not impressed, under the evidence before us, that the notice given was not sufficiently formal and informing as to amount to a failure to give defendant "due proof" of his disability.
Appellant urges that the group policy had been canceled on December 1, 1932, and a second group policy substituted therefor is fatal to plaintiff's action for disability, *Page 329 theretofore occurring on the 5th day of June, 1932; and cites in support of this contention, McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349. That case is wholly different from the facts of the instant case and the policy declared upon. It is required of this plaintiff to show membership in the Pioneer Insurance Club, to show payment of all subsequent dues to the date of disability, continued membership in good standing in the Pioneer Insurance Club as an employee of the Republic Iron Steel Company, and that due proof was given, or waived. It is uncontradicted that plaintiff was in good standing and all dues paid; that he continued as a member in good standing of that club and gave defendant notice of his injury while he was insured under the master policy in force with defendant. The latter (defendant) replied by letter, denying liability on the ground that his "present condition is not permanent," or so, shown, and sought to reserve other defenses to the policy that may exist. Plaintiff acted on such disallowance of his claim. Home Ins. Co. of New York v. Scharnagel, 227 Ala. 60, 148 So. 596. In the respects indicated, this case is different from the McGifford Case, supra.
The plaintiff, as a member in good standing of the Pioneer Insurance Club, had paid all the required dues and premiums from February 1, 1930, to March 1, 1934, was continuously of the class of persons insured under the group policy to the date of the trial, and on March 16, 1933, gave due proof on the company's form of his injury, which was within a reasonable time. Provident Life Accident Ins. Co. v. Heidelberg,228 Ala. 682, 154 So. 809.
The defendant recognized plaintiff as a member in good standing at all times, reissued to him a certificate of membership and assurance under the master policy, making two certificates of insurance given him on the respective dates of November 22, 1929, and December 1, 1932. The defendant should not be permitted to defeat plaintiff's claim for the failure to give (before December 1, 1932) due proof of his injury, when,at all times, to the date of the trial, all premiums and dueswere fully paid by assured. This distinguishes this case from the facts of McCutchen v. All States Life Ins. Co. (Ala. Sup.)158 So. 7291; New England Mut. Life Ins. Co. v. Reynolds,217 Ala. 307, 116 So. 151, 59 A.L.R. 1075; McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349, and Equitable Life Assur. Soc. v. Dorriety (Ala. Sup.) 157 So. 59,2 in which the decisions turned on the failure of the assured to furnish proof of disability "to the insurer" (the furnishing of such proof of disability constituting a condition precedent to waiver of premium payments under the contract) and the failure of payment of premiums due after the injury and to the time of the trial. Here, due proof was given (1) while the insured was a member, (2) with all premiums paid, and (3) while the insurance was in force.
The defendant was not entitled to the general affirmative charge on the theory that due proof of disability was notseasonably given to defendant during the life of the policy. Ex parte Gilbreath Gray (Prudential Ins. Co. v. Gray), ante, p. 1,159 So. 265.
We recur to the question presented to this court under several cases before us, Protective Life Ins. Co. v. Cole,161 So. 818,3 and Protective Life Ins. Co. v. Wallace, post, p. 338,161 So. 256.
It may be observed that it has been held that the question of whether or not an insured is totally and permanently disabled by bodily injury or disease from engaging in any occupation was one of fact for the jury. Travelers' Ins. Co. v. Plaster,210 Ala. 607, 98 So. 909; Metropolitan Life Ins. Co. v. Blue,222 Ala. 665, 133 So. 707, 79 A.L.R. 852; New York Life Ins. Co. v. Torrance, 228 Ala. 286, 153 So. 463; Equitable Life Assur. Soc. of the United States v. Wiggins, 115 Fla. 136,155 So. 327, 328.
Within the definitions and application of our cases, what is the meaning of the contract terms employed, viz.: "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 bodilyinjury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging inany gainful occupation, the Company will pay to such member in full settlement of all obligations hereunder as to such member's life, the amount of insurance in force hereunder on such member at the time of the approval by the Company of theproofs as aforesaid. This amount will be paid either in one sum six months after proof of disability has been established or in installments *Page 330 as hereinafter provided, beginning immediately after proof ofdisability has been established. For each $1,000.00 of insurance hereunder the amount of each installment shall be in accordance with the following table?" That is to say, we are to make application of the rule to the instant facts. They are, that plaintiff received severe injuries and as the result thereof he is rendered, not entirely helpless, but is unable to substantially do and perform the material acts necessary to the due and required prosecution of his occupation, as those of a "stove tender," in the customary and usual manner theretofore required and duly performed by him in the discharge of the duties of that employment. (Italics supplied.)
General forms of insurance contracts have been construed and applied by this court to the particular facts of each case. For examples: Travelers' Ins. Co. v. Plaster, supra, a case upon a policy of accident insurance containing the clause that, " 'If such injuries' * * * shall wholly and continuously disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation * * * the company will pay the sum set opposite such loss," etc.; Metropolitan Life Ins. Co. v. Blue, supra, a suit on an insurance policy using the words, "become totally and permanently disabled * * * so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit"; New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547, and Ellis v. N.Y. Life Ins. Co., 214 Ala. 166, 106 So. 689, suits on life insurance policies containing the terms, "wholly disabled," that he is and "will be presumably thereby, permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit." Like terms were also employed in a case against the same insurance company by McLean, 218 Ala. 401, 118 So. 753. In Jefferson Standard Life Ins. Co. v. Simpson, 228 Ala. 146, 153 So. 198, the policy therein involved contained the clause, "permanently, continuously and wholly prevented thereby from pursuing anyoccupation whatsoever for remuneration or profit." And in Equitable Life Assur. Soc. v. Dorriety (Ala. Sup.) 157 So. 59,61,1 the contract terms employed were: "Disability shall be deemed to be total when it is of such an extent that the insured is prevented thereby from engaging in any occupation orperforming any work for compensation of financial value." (Italics supplied.)
The terms of the instant contract are not more exclusive than the foregoing. It is well that we re-examine these cases for the application to be made to the instant facts.
In Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 610,98 So. 909, 911, "total disability" in an accident policy is defined as being "a relative term, depending in a measure upon the character of the occupation and the capabilities of the insured, and to a large extent upon the circumstances of the particular case."
The foregoing announcement is quoted with approval in Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A.L.R. 852, and in New York Life Ins. Co. v. Torrance,224 Ala. 614, 141 So. 547, where life policies were declared upon.
In Metropolitan Life Ins. Co. v. Blue, supra, it is said:
"Appellant calls attention to the definition of 'totally disabled,' in this policy, viz., 'so as to be prevented thereby from engaging in any occupation or work for compensation or profit,' and would construe this as negativing any liability, after it appears without dispute that he can and does perform some work without hurt.
"We do not construe the quoted clause as changing the general and accepted meaning of 'totally disabled.' Nor does the fact that this is a supplemental contract attached to a life policy call for a different construction. If life policies are framed and sold with provisions covering the field usually occupied by accident insurance, like terms must impose like obligations.
" 'Prevented from engaging in any work or occupation,' as applied to this case, means prevented from doing substantial and profitable work in his profession." 222 Ala. 665, 668,133 So. 707, 710, 79 A.L.R. 852, 856.
In New York Life Ins. Co. v. Torrance, 224 Ala. 614, 617,141 So. 547, 550, Mr. Justice Gardner declared: "A majority of the courts adhere to the liberal rule of construction that the 'total disability' contemplated in insurance policies does not mean, as its strict literal construction would require, a state 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 (Metropolitan *Page 331 Life Ins. Co. v. Bovello, 56 App. D.C. 275, 12 F.(2d) 810, 51 A.L.R. 1040 and note; Note 41 A.L.R. 1376; Note 24 A.L.R. 203; 1 Corpus Juris, 463), and this statement of the rule has been noted with approval by this court, United States Casualty Co. v. Perryman, supra. And in Metropolitan Life Ins. Co. v. Blue, supra, the court held that the words 'prevented from engaging in any work or occupation,' as then applied, meant 'prevented from doing substantial and profitable work in his profession.' "
Such was the rule as announced and applied in New York Life Ins. Co. v. McLean, 218 Ala. 401, 118 So. 753, 754, where the suit was upon a life insurance policy, and the terms (as we have indicated) were "permanently and continuously prevented from engaging in any occupation whatsoever for remuneration orprofit." (Italics supplied.)
In Jefferson Standard Life Ins. Co. v. Simpson, 228 Ala. 146,153 So. 198, 200, Mr. Chief Justice Anderson observed of charges 1 and 2, refused to the defendant, that: "They attempted to hold the plaintiff to the literal language of the policy, and were too narrow. This court, in passing on provisions in policies similar to the one involved, 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, a state 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.' New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547, 550; New York Life Ins. Co. v. McLean, 218 Ala. 401, 118 So. 753; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; U.S. Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462."
This subject was likewise considered and announced on the last appeal in the Torrance Case, 228 Ala. 286, 153 So. 463,464, as follows:
"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 his attempt to engage in an occupation was not accompanied with the ability to do so in its substantial features with the skill and accuracy which such business demands, in the usual and customary manner, he is totally disqualified from pursuing that occupation, though he does undertake to carry it on, but, in doing so, such want of skill and ability are [is] manifest.
"It is apparent to us that the Court of Appeals [153 So. 458] possessed and applied to the facts the same idea which we have, and which we had expressed on former appeal in respect to total disability as defined in the policy."
This question was later re-examined in Equitable Life Assur. Soc. v. Dorriety (Ala. Sup.) 157 So. 59, 61, quoting with approval the excerpt which we have reproduced above from the last appeal in the Torrance Case, 228 Ala. 286, 153 So. 463. Like conclusions were announced in John Hancock Mut. Life Ins. Co. v. Beaty (Ala. Sup.) 162 So. 281,1 and Protective Life Ins. Co. v. Wallace (Ala. Sup.) 161 So. 256.2 It is to be noted from these cases that a percentage of disability is not the test of liability in a suit on an insurance policy, but rests upon the fact that the plaintiff, by reason of his condition in question, is unable to do and perform substantially all of the material acts necessary to the prosecution of his occupation, in substantially his customary and usual manner. Such is the test and effect of recent announcements, and the application of the rule to suits on insurance policies. This statement of the rule is adopted by Mr. Justice Knight in Protective Life Ins. Co. v. Wallace, supra.
This question of fact, under the evidence and reasonable tendencies, in the opinion of the writer, was for the jury, and was properly submitted.
Plaintiff testified that he has not been able to do any work since his injury, and has not engaged in any occupation.
Dr. Magruder, a surgeon for one of the railroads and a man of large experience, was appointed by the court to examine plaintiff. He said plaintiff had good union, about one and one-half inches of shortening in the right leg due to loss of bone in the fracture; had some disturbance in the circulation of the leg, and the muscle in his thigh was soft and flabby from nonuse; along the outer side of his leg and heel he was very sensitive, due to neuritis, sensitive to the touch and causing him some pain; and from his observation the disability was about 35 per cent. of a permanent disability.
Dr. Carraway, a witness for defendant, said plaintiff had a good bone union; a shortening *Page 332 of the leg caused by something lacking that delayed the bone knitting together in the ordinary time. His testimony contained conflicting tendencies to the evidence adduced by plaintiff.
Dr. Sorrell, a witness for defendant, tended to present conflicting tendencies as to the extent of plaintiff's evidence. That is, there is positive and direct evidence that plaintiff's condition is such that he cannot do heavy manual labor required of a "stove tender" in discharging the duties of that employment in his (the) usual and customary manner; and the tendencies of evidence of Doctors Carraway and Sorrell are to the contrary. There is presented a conflict in the evidence or reasonable tendencies thereof, making the question of liability one for the jury. McMillan v. Aiken, 205 Ala. 35, 40,88 So. 135; Travelers' Ins. Co. v. Plaster, 210 Ala. 607,98 So. 909; Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665,133 So. 707, 79 A.L.R. 852; New York Life Ins. Co. v. Torrance,228 Ala. 286, 153 So. 463.
For the foregoing reasons, I respectfully dissent.
KNIGHT, J., concurs to the extent which he indicates as follows:
2 229 Ala. 352.
1 229 Ala. 616.
2 Post, p. 352.
3 Post, p. 450.
1 229 Ala. 352
1 Post, p. 638.
2 Post, p. 338.