The appellant, McDonald, sued in this case to recover monthly benefits, payable, under a policy of insurance, upon proof that the insured had before reaching sixty years of age become totally and permanently disabled by *Page 408 injury or disease, and to recover back the amount of a premium paid by him after he had made his claim. The policy relieved the insured from further obligation for payment of premiums in case of disability. Judgment was rendered for the defendant, upon a verdict directed by the court, and the appeal of the plaintiff has followed. A claim by the same plaintiff for disability from the same cause at an earlier time had been defeated by the adverse finding of a jury and judgment in the District Court of the United States, and the claim now asserted is one for continued and increased disability from the same cause in the period immediately following the disposition of the first suit.
The policy provided, more specifically, for payment of the benefits and waiver of premiums upon proof "that the insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured's age at nearest birthday is 60 years." and "disability" was defined in a clause that: "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 or performing any work for compensation of financial value, and such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months."
McDonald's first suit, instituted in December, 1931, in the Circuit Court for Allegany County, was removed to the federal court, and tried there on September 29th, 1932; and the judgment for the defendant was entered on October 1st, 1932. This second suit was instituted on July 6th, 1933, to recover benefits and the premium, as stated, for disability from the same cause beginning on the day of the judgment in the first suit. The second claim had been previously filed on March 20th, 1933; about three months before the insured reached the age of sixty, and the benefits demanded were those alleged to have accrued up to the time of the institution of the suit. The record and testimony in that first suit were introduced *Page 409 in evidence in the second, and it clearly appears that in both suits, apart from the different periods of disability alleged, the issue was disability from a disease of the heart from which the plaintiff was supposed, by himself and his witnesses, to have been suffering since 1928, four years before. The testimony in both suits covered, to a large extent, the same ground; McDonald's condition being reviewed in both from the year 1928.
It has not been contended in either case that the plaintiff's mental or bodily activities were obstructed by any injury or disease except as they may have been rendered unsafe, inactivity enforced, and disability thus brought about, by the danger of bringing on pain or death from angina pectoris. The plaintiff's testimony, summarized, is that he was born on June 18th, 1873, had been inured to hard work from childhood, principally about coal mines, and had risen to be, in succession, a mine manager, partner in ownership of mines, and sole owner. A son took charge of his mines in 1926. Thereafter the father continued to go to the mines sometimes, and also went by automobile to see customers, until October, 1929, when he quit work altogether. He was a heavy man, weighing about 235 pounds in 1928. In the latter part of that year, 1928, feeling some heart symptoms, he had consulted a physician, now dead, and had been told that he had angina pectoris and should cease all activities. He then went to Dr. Everhart, one of the witnesses in the trials, and has since been treated by him for angina pectoris. The plaintiff testified that he suffered from pains about the heart after physical exertion, or after worry and excitement, and as a consequence could not attend to any business that might worry him; and as he was worried by any business, and even by reading newspapers, he was disabled from all gainful occupation as described in the policy. He did not cease all activity whatever. He was not forbidden to go upstairs; at one time before October, 1932, he climbed 162 steps to his mine, but without the knowledge of his physician. He walked to nearby stores and to a barber shop. In February, *Page 410 1932, he made a trip by train from his home near Cumberland to Texas, where he owned an orchard. His physicians have never seen him during an attack such as he complains of, except once, and then the attack was mild, and over in a few minutes. The prescriptions for him have been doses of digitalis, and a life of leisure and ease, with full sleep. The medicines commonly carried about for immediate relief from angina pectoris were never prescribed, and no morphine was ever given.
In contradiction of this testimony, physicians who examined the plaintiff on behalf of the defendant testified that the pains and attacks described were not characteristic of angina pectoris, but were much less severe, and could have been brought on by conditions normal to a man of that age, that prolonged examinations had failed to reveal any indications of angina pectoris or disability, and that the plaintiff would be better off if he would find some occupation which would take his mind off himself.
On this testimony, the plaintiff still contends that he has since 1928 been disabled by angina pectoris, and that the same condition, continued, has disabled him further than before 1932. It is testified that the attacks have occurred more frequently, and at different hours, coming on recently at night or early in the morning unassociated with any movement or effort, and that there are more severe attacks. He continues to walk about somewhat, and to go upstairs. In May or June of 1933, after he had made his second claim of disability, he rode in an automobile from his home near Cumberland to Towson and back; but he testifies that on the way to Towson he had pain in the heart, weakness, and sweating that made him stop for two hours at Frederick. In July of the same year, 1933, he rode from his home to Ohio and back again without inconvenience. While on a diet, he said, he did not stick to it very closely, and he did not know whether that was responsible for his condition or not. Defendant's testimony applicable to this later period, too, was, as stated, that there was no angina pectoris, that the attacks complained *Page 411 of were much milder, and far different from those of angina pectoris, and that the plaintiff needed an occupation.
The policy having been kept alive, the insurer was entitled to recover for disability accruing, as he alleges, upon or after the conclusion of his first suit, if such disability should be shown. Failure to prove the disability at one time did not terminate the disability insurance. Whether the evidence now adduced was legally sufficient to prove the fact, and to require a reversal of the judgment for the defendant, is a question on which the judges are not of one mind, but in the view of the majority it is not sufficient. It is settled as between the parties that the disability did not exist up to October, 1932. No new, intervening obstruction to the plaintiff's exercise of his powers is testified to, and his testimony shows that he can still travel, climb stairs, and engage in other activities within the powers thus illustrated. And the pains and depressions he testifies to, if they may be said to disable him to any extent, are not sufficient to show the disability insured against, namely, a total, permanent disability preventing him from engaging in any occupation or performing any work for compensation of financial value. This conclusion would require direction of a verdict for the defendant upon the prayers submitted, and no error is found, therefore, in that action by the trial court.
Judgment affirmed, with costs.