The court erred in overruling the motion for new trial.
DECIDED DECEMBER 5, 1940. T. L. Howard filed this action against the New York Life Insurance Company to recover disability benefits under a policy of insurance issued to him by the company. On the trial of the case the jury found a verdict for the plaintiff, and the company made a motion for new trial on the general grounds. The court overruled the motion and the company excepted.
The plaintiff testified: "I am suffering with heart trouble. The first time I noticed it was in the fall of `37. As the result of these attacks I have consulted some physicians. . . My occupation is turpentine operator and farmer. As to what I did prior to March 15, 1938, well, I did perform duties in operating turpentine business and farming. As turpentine operator some of my duties were inspecting, cruising, and estimating timber for turpentine purposes; securing labor and demonstrating to the laborer how work is to be done, and in doing these things it is necessary to walk or ride horseback *Page 866 a great deal. It is necessary often to assist in doing a lot of odd jobs. Other duties are to superintend and assist in burning woods, and keeping them from burning woods as the case may be. This work is very tiring physically. Those are some of the main duties of a turpentine operator. They are not all, however. . . In operating the turpentine business it is necessary to drop in temporarily and assist in moving things that are heavy, or transferring wagon bodies broken down and often seeing it repaired. Much of the time there is not enough help around to do these things. . . I did these things prior to my disability. I farmed prior to March 15, 1938. . . By being a farmer the way I did, I hoed; I plowed when it was necessary and when a hand would be out I would be wanting to carry on some work and probably wouldn't be enough help at the time to carry on some work and I generally helped to do it myself. In addition to that I looked after any hired help that I might have; went in the fields and demonstrated to them how I wanted the work to be done; that is, I mean I take hold of the plow and plow some. . . I haven't done those duties since March 15, 1938. . . On slight exertion I have a tightness in my chest accompanied with misery; pains penetrating my arms at times. Any kind of worry or mental strain affects me. I stated I had pains and also a tightness in my chest. These attacks occur any time when I take exercise that is at all taxing to my strength. . . I have refrained from doing any of these things that would cause me to suffer in that respect. . . Other duties I have performed, I have taken hold of a hack and shown a negro how I would want it chipped. I have taken a puller and shown them how I wanted it pulled, and I would take a scrape and show him how to get the face off of trees. I performed those duties prior to the time I became disabled. In my farming I always raised some livestock. In connection with the farming and livestock I rode horseback in the woods, or walked if I wanted to gather up cattle and hogs and put them in the pens and fields and mark them. I did the marking. I don't do it now because I am not able. I haven't actually herded stock by riding a horse, and also marking cattle, since the early part of 1937. I walked in the woods for the purpose of cruising timber. I refrained from those duties about March, 1938. I was asked by my physicians not to do it." *Page 867
On cross-examination the plaintiff testified: "I was sixty years of age last March. . . I am sole owner of a business I tried to operate myself. . . As to whether I have other business known as Howard and Howard, myself and brother, that is right. I operated that business individually a while and he worked for me, and then I sold him an interest in the business. . . I have the greater interest. . . This business I am operating now, as to how long it has been in existence, I'd say ten or twelve years. . . As to whether I have another business known as Howard and Parker, . . J. E. Parker is my partner and equally interested. He lives on his own property. He don't live on our property. . . As to who looks after my own individual interest, who is my woodsman or boss out there, his name is Yawn. As to whether he is the woodsman and looks after the employees and producer of the gum, he is a man that is on the place. Of course I assist him in looking after the employees. . . My brother looks after Howard and Howard. Parker looks after Howard and Parker. . . As long as I was able to I assisted him. . . I still my gum I have individually at Howard and Parker's, and Howard and Howard's output is stilled up there at a place belonging to my nephew. . . As to whether there are other duties that are not connected with the turpentine places, well, there are some other duties, buying timber to lease, and as to the necessary financial arrangements customarily made once a year with the factor stores. It is necessary that we talk over with Mr. Roney about the program and marketing plans, and new timber purchases, and what amount of cups we have, and that sort of things, each year, and I have been accustomed to going down there and talking that over. . . I do some banking in Glennville; that is my personal business. We don't have any account of Howard and Howard. All of those checks are given against my individual account. I sign practically all of them myself. As to how many acres of land we own, around 12,000. . . I used to go to Atlanta to get mules when I was able. . . As to how many acres I actually farm, . . in the neighborhood of 150 to 175 acres, . . about five or six plows in all. . . I operate it mostly by wages hands now. . . Those turpentine businesses are in operation this year and I expect them to be operated next year. . . I imagine my farm will be operated next year. As to the number of head of cattle, I would say from 150 to 200 *Page 868 head. . . I am a member of the legislature from Long County. I was a candidate for the legislature in 1938, and as a result of that campaign I was elected. . . I visited a little, not much. . . As to whether it was hot at that time of the year, it usually is that time of the year. . . I qualified as a member of the Legislature and served the full seventy days. . . during the session I came home on week-ends. I mostly made the trip by automobile. I mostly came and went with the representative from Wayne County. . . I probably gave attention to some things in connection with my business, I gave some things concerning my business attention. While I was a member of the legislature my brother died, and I was executor of his estate. . . He left about 1000 acres of land individually, and an interest in 8000 acres, and some business property. I discharged my duties in connection with the estate. . . I probably drove my car to Glennville twice last week. I transacted some banking business while there. I went to Ludowici to see Dr. Middleton. The week before we were all down to Savannah. . . I drive around most every day. . . I am the head of my business, I leave that with my partners in the other businesses. . . They have been operating for a number of years, but they are operating now without my assistance. I can't give them the attention I would like to give them."
There was medical testimony to the effect that the plaintiff suffered with heart trouble and should desist from mental or physical strain. The other evidence is substantially to the effect of the quoted testimony of the plaintiff. Under the rulings of the Supreme Court in Cato v.AEtna Life Insurance Co., 164 Ga. 392 (138 S.E. 787), and Prudential Insurance Co. v. South, 179 Ga. 653 (177 S.E. 499, 98 A.L.R. 781), the evidence on behalf of the insured in this case did not authorize the finding that he was permanently disabled. It does not appear from his evidence in sufficient detail what his ordinary and customary duties were before his alleged disability began. It does appear that he desisted from certain physical duties, but these did not constitute the substantial part of his total duties. Not only did the insured not desist from attending to his farm operations, or *Page 869 from performing certain duties with reference to his other businesses, but he undertook other duties, service in the General Assembly and the administration of a brother's estate. It nowhere appears from the record that there was any diminution in the earnings of the insured. In order for a finding of total and permanent disability to stand there must be evidence to authorize the finding that, by reason of an actual disability, the insured has desisted from the performance of the greater part, a substantial part, of his customary duties. Under the evidence the jury could not ascertain whether the insured had refrained from performing one half, one fourth, three fourths, or eight tenths of his customary duties. The cases cited by the defendant in error, such as New York Life Insurance Co. v. Thompson,50 Ga. App. 413 (178 S.E. 389), and New York LifeInsurance Co. v. Bradford, 57 Ga. App. 657 (196 S.E. 92), do not apply to the circumstances of this case. In these cases the evidence was sufficient to show that the insureds, in their particular circumstances, were totally and permanently disabled. The principle announced in Federal Life Insurance Co. v. Hurst,43 Ga. App. 840 (3) (160 S.E. 533) is more nearly applicable to the facts of this case. We do not say that the evidence in this case demands a finding against total and permanent disability. It simply does not show sufficient facts to authorize a finding as to what the extent of the disability was. The court erred in overruling the motion for new trial containing the general grounds.
Judgment reversed. MacIntyre, J., concurs. Sutton, J.,dissents. Stephens, P. J., disqualified.