I am unable to agree with the majority opinion. The opinion is inconsistent with our former holdings in the cases to which reference is made. This court is committed to the rule that the word "permanent" should be given its ordinary meaning, that is to say, that permanent disabilities are such as will last through life. We have recognized that whether or not an injury is permanent is a fact to be determined by the jury or other trier of the facts upon the testimony produced upon the trial, that *Page 1108 there must be some evidence from which it can be found that the injuries will last through life, but that the fact is to be determined from a preponderance of the evidence. The situation in relation to proof of permanency, under our rule, is substantially the same as exists in cases involving future pain and suffering, future items of expense, and things of that kind. The fact is to be found from the preponderance of evidence and, of course, this means that permanency need not be established to a certainty. Whether disabilities are, in truth, permanent cannot be known for a certainty until the close of life has told the whole story. Still every injury is either temporary or permanent. The rights of the parties require the determination of the character of the disability prior to death. Under the rule which we have adopted, the character is to be determined, as any other fact, from a preponderance of the evidence and such determination fixes the rights of the parties until and unless changes demonstrate that the finding was erroneous, in which event, under provisions of the policy, the benefits are cut off.
I think our rule in this respect is the better rule and it seems to be sustained by the greater weight of authority. The cases sustaining the rule are the following: Hawkins v. John Hancock Mut. L. Ins. Co., 205 Iowa 760, 218 N.W. 313; Kurth v. Continental Life Ins. Co., 211 Iowa 736, 234 N.W. 201; Steffan v. Bankers Life Co., 267 Ill. App. 248; Metropolitan Life Ins. Co. v. Noe, 161 Tenn. 335, 31 S.W.2d 689; Home Ben. Assn. v. Brown (Tex. Civ. App.) 16 S.W.2d 834, 835; Ginell v. Prudential Ins. Co., 237 N.Y. 554, 143 N.E. 740; Brod v. Detroit Life Ins. Co.,253 Mich. 545, 235 N.W. 248; Metropolitan Life Ins. Co. v. Blue,222 Ala. 665, 133 So. 707, 79 A.L.R. 852; Shipp v. Metropolitan Life Ins. Co., 146 Miss. 18, 111 So. 453; Ellis v. New York Life Ins. Co., 214 Ala. 166, 106 So. 689. See, also, Maze v. Equitable Life Ins. Co., 188 Minn. 139, 246 N.W. 737. The cases to the contrary are the following: Penn. Mutual Life Ins. Co. v. Milton,160 Ga. 168, 127 S.E. 140, 40 A.L.R. 1382; Adamson v. Metropolitan Life Ins. Co., 42 Ga. App. 587, 157 S.E. 104; Equitable Life Assurance Soc. v. Serio, 155 Miss. 515,124 So. 485; Wenstrom v. Aetna Life Ins. Co., 55 N.D. 647, 215 N.W. 93, 54 A.L.R. 289; Laupheimer v. Mass. Mut. L. Ins. Co., 224 Mo. App. 1018, 24 S.W.2d 1058. See, also, Maze v. Equitable Life Ins. Co., supra. The case of Maze v. Ins. Co., supra, is cited both ways. The case is argued one way and decided the other. *Page 1109
The other question has to do with the character which disabilities must possess in order to be total. The case of Lyon v. The Railway Passenger Assurance Co., 46 Iowa 631, was decided in 1877. It has been generally regarded as definitely committing this court to the rule that injuries to be total within the meaning of provisions of the kind under consideration must completely disable the insured. In subsequent opinions this court has so regarded that case. I doubt very much whether it was the intention of the court to adopt such a rule by what was said in the Lyon case, but on account of the fact that in subsequent cases the court has, in effect, so considered the case, I believe if any change is to be made in our position, it might better be done by overruling the case and restating our position, than by attempting to modify the effect which this case has had on our law. The Lyon case came before the court on objections to two instructions. The instructions under consideration in that case went fully as far in favor of the insured as any court has gone and I may say that some of the courts have gone a long way. In discussing these instructions, this court went to the other extreme. It was a great many years before the question again came before the court, but in late years it has been here in the cases of Hurley v. Bankers Life Co., 198 Iowa 1129, 199 N.W. 343, 37 A.L.R. 146; Corsaut v. Equitable Life Assur. Soc., 203 Iowa 741, 211 N.W. 222, 51 A.L.R. 1035; Kurth v. Continental Life Ins. Co.,211 Iowa 737, 234 N.W. 201. In the Hurley case, which was decided in 1924, an examination was made of all of the authorities and the court specifically expressed its adherence to the rule announced in the Lyon case. In the Corsaut case, decided in 1927, the rule was followed upon the authority of the Hurley case. The Kurth case was decided in 1931. In the opinion Judge DeGraff quotes from a number of cases which are inconsistent with the rule formerly recognized by this court. I think on the whole the language used in this case is in conflict with much that was said by the court in the earlier cases. The facts upon which the case is based are sufficient to sustain the case without any deviations from the rules announced in the earlier cases. The opinion refers to the earlier cases and approves them. The holding is entirely consistent with the earlier cases, but the reasoning by which the result is reached is the reasoning which is adopted by courts adhering to the other rule. In the Kurth case the record was such that a finding that the injuries were both permanent and total could be made. *Page 1110 In the Hurley and Corsaut cases the testimony showed conclusively that the injuries fell far short of being total and the same is true of the injuries in the original Lyon case.
In this situation it occurs to me we have not had occasion to define the extent and limits to which disabilities must go in order to be total.
I am inclined to believe that the better rule and the rule supported by the weight of authority in other states is that disability, in order to be total, must, in effect, prevent the insured from effectively engaging in any business, profession, or occupation in the light of the circumstances in which the insured finds himself. The foregoing sentence does not represent an attempt to accurately state the rule, but I think it is sufficient for the present purpose. This rule would be inconsistent with the language of all our cases but it would not be inconsistent with the matters actually decided in such cases. It would be a very material extension of liability beyond what a reading of the cases would indicate our rule to be at the present time. In a proper case I would be willing to clarify our holdings in this respect.
I do not believe that the present case is one in which this should be undertaken for the reason that the facts bring the case squarely within four of our cases, namely, the Lyon, the Hurley, the Corsaut, and the Kurth cases. In this situation it becomes essential to disclose the character of plaintiff's disabilities as revealed by the record.
Over proper objection, plaintiff was permitted to answer this question:
"Q. I will ask you, Mr. Garden, whether or not you are now physically incapacitated so as to be wholly and permanently unable to engage in any occupation or profession or perform any work whatever for gain or profit?"
Over proper objection, two physicians, testifying for plaintiff, answered the following question in the affirmative:
"Q. You may state whether or not Archie E. Garden is now physically incapacitated so as to be wholly and permanently unable to engage in any occupation, profession, or to perform any work whatsoever for compensation, gain or profit?"
Such questions clearly invaded the province of the trier of the fact, and in consequence were incompetent. See Justis v. Union *Page 1111 Mut. Cas. Co., 215 Iowa 109, 244 N.W. 696, in which a multitude of the cases of this court are collected, all holding such questions incompetent. The inherent vice of questions of this character is that the answer to the question involves a construction of the contract by the witness, as is clearly demonstrated by the subsequent examination of the witnesses from which we quote. This is what the first physician said:
"Q. Doctor, would you say that everybody that had arthritis is permanently and totally disabled from performing any work or labor? A. When it is as extreme as that he is for the time being permanently and totally disabled.
"Q. What do you mean by permanent? A. This permanent injury to the knee joint, septic injury.
"Q. You use the term permanent as applied to the injury? A. Yes, sir.
"Q. You do not mean to tell the court he is permanently disabled from ever performing any work or labor? A. I do not."
This is what the second physician said:
"Q. Would you say to the court, or did you say to the court, that in your opinion here that your nephew would never be able to engage in any work? A. I did not."
The proofs filed by plaintiff with his claim for disability benefits are in the record. In them appear the following question and answer:
"How soon in your opinion will insured be able to engage in any occupation, partial or otherwise?"
"Able to be partially occupied now."
This is the answer of plaintiff's own physician. There is no evidence in the record, not so much as a single sentence or single word which associates totality with permanency in regard to plaintiff's disabilities. He was, we will say, totally disabled at the time of the trial. He had then been ill ten months. He could not be made well in a day. In that no man, even one skilled in medicine, can tell how soon the recuperative powers of the body will work their changes, the duration of his disabilities was then "indefinite". But unless it be that the duration for a period of ten months of a disease from which most people recover, and in relation to which *Page 1112 the prognosis of plaintiff's physicians is evasive rather than uncertain, warrant a finding that plaintiff's disabilities would be of "indefinite duration" in the sense that they would likely endure through life, there was no evidence from which a finding of totality and permanency could be made.
The case was tried as in equity and is here for trial anew. We are not concluded by any finding of fact in the lower court. The only conclusion which a reading of the record warrants is that plaintiff will have a stiff knee. It is a matter of common knowledge that a stiff knee does not produce total disability, and there is no evidence in the record from which it could be found that plaintiff was so situated that a stiff knee would so incapacitate him.
The majority opinion holds that disabilities far short of total, and much less enduring than "permanent", entitle the insured to disability benefits under policies of the kind under consideration. In truth, it writes a new contract of insurance.
I am authorized to say that Mr. Justice DONEGAN concurs in this dissent.