DISSENTING OPINION. To the statement of facts in the controlling opinion I will add only this: The appellant obtained his employment as a truck driver because of circumstances which in the very nature of things will probably not soon again occur. He was never required by his employer to drive the truck more than five miles per day, and there were "days and days" when he was not called upon by his employer to perform any service whatever in connection *Page 453 with his employment. He suffered pain at night throughout this period of his employment.
All of the cases heretofore decided by this Court proceed on the theory, in accord with the weight of authority elsewhere, that if the physical condition of the insured in a health and accident insurance policy, similar to the one here in question, is such that in order to effect a cure reasonable care and prudence require that he cease work, he is totally disabled within the meaning of the policy.
There was here evidence and to spare, including that of three physicians, to warrant the jury in finding that (although the appellee drove a truck), during the period of time here involved, in order to effect a cure of his malady reasonable care and prudence required the appellee to cease work.
Except for the evidence that the appellee actually engaged in manual labor, the jury would undoubtedly be permitted to find that he was permanently disabled, within the meaning of the policy. The question then is: Does the fact that he performed this manual labor constitute proof that he was, in fact, not totally disabled from engaging in work within the meaning of this policy? In accord with many authorities elsewhere, all but two of the cases heretofore decided by this Court hold that engaging in manual labor is simply a fact for the consideration of the jury in determining whether the insured was totally disabled from engaging in such work, within the meaning of the policy.
This rule is implicit in, and was fore-shadowed by, Metropolitan Life Ins. Co. v. Cato, 113 Miss. 303, 74 So. 118; and was expressly held in Metropolitan Life Ins. Co. v. Lambert,157 Miss. 759, 128 So. 750; New York Life Ins. Co. v. Bain,169 Miss. 271, 152 So. 845; Mutual Benefit Health Accident Ass'n v. Mathis, 169 Miss. 187, 142 So. 494; Reliance Ins. Co. v. Cassity,173 Miss. 840, 163 So. 508. It is implicit, although not specifically announced, in other cases decided by this Court. The evidence here, if these cases are to be followed, presented a question for *Page 454 the determination of a jury, and the court below cannot be held to have erred in refusing to direct a verdict for the appellant.
Brotherhood of Railroad Trainmen v. Nelson, 166 Miss. 671,147 So. 661, 148 So. 179, and New York Life Ins. Co. v. McGehee,193 Miss. 549, 10 So.2d 454, are in conflict with the above cases, and hold that the performance of substantial manual labor negatives total disability, within the meaning of the policy, and leaves nothing relative thereto for the decision of the jury. I think the rule of the cases first hereinabove cited should be followed, and the court below be held to have committed no error in refusing a directed verdict for the appellant. The compensation, whether little or much, received by the appellant for the work here performed by him, has no bearing on whether he was totally disabled, within the meaning of the policy; and it may not be amiss, though I have left it out of view, to point out that the work in which he actually engaged could not have taxed his physical strength to any great extent.
Anderson, J., concurs in this dissenting opinion.