Argued October 28, 1942. Assumpsit. Before LEWIS, P.J.
Verdict and judgment for plaintiff. Defendant appealed. Defendant has appealed from judgment in favor of plaintiff in the amount of $2,903.96,1 its motions for judgment n.o.v. and a new trial having been overruled.
This action in assumpsit was brought by plaintiff to *Page 656 recover total and permanent disability benefits alleged to be due under two insurance policies issued by defendant, and for refund of premiums paid. The policies contain substantially the same clauses as to total and permanent disability benefits; they are printed in the margin.2 *Page 657
Plaintiff, who was 53 years of age in 1940, was in an automobile accident on March 29, 1934. His left arm was badly injured, and its use largely destroyed. Defendant paid benefits under the policies for total and permanent disability until April 29, 1939, when they were discontinued on the ground that plaintiff was no longer totally disabled.
The evidence produced at the trial, when considered in the light most favorable to plaintiff and all reasonable inferences to be drawn therefrom made in his favor, may be thus summarized:
Plaintiff was at least partially disabled. The use of his left arm was limited; a duodenal ulcer (a chronic indurated callus ulcer) at times caused distress; and hypertrophic arthritis of the spine (second and third vertebrae) sometimes gave him pain, and may have had a restrictive effect.
Prior to his injury on March 29, 1934, plaintiff owned and operated a 270-acre farm. He had thereon ten horses, mostly race horses, and a herd of sixty-five cows. The farm was actually operated by a superintendent and two or three hired men, with additional help when it was needed. Cattle were bought and sold, as well as raised. Plaintiff himself bought and sold cattle for his own account and for others. He trained and raced some of his horses. It does not appear that he performed any other manual labor on his farm prior to his accident. Plaintiff's superintendent had authority to buy for and sell from the herd.
Since 1925 plaintiff had lived in Genesee, Pa., six miles from his Spring Mills farm. For many years *Page 658 he had been a director in a bank at Genesee, and he attended the meetings of the board notwithstanding his disability.
At the time of trial, December 9, 1940, plaintiff had on his farm fifty cows and twelve horses (colts, brood mares, stallion, and trained racing horses). (His brother owned one and had an interest in another.) He had the same superintendent, two men employed by the year, and two others to help operate the farm.
As a result of his condition, plaintiff has been unable to perform some of the physical work involved in the buying of cattle, and he has been unable to drive his horses in races. But he has entered and withdrawn them, and collected their winnings when they were successful. During 1939 and 1940 he attended fifty to seventy-five per cent of the many races in which his horses were entered. These races were at widely separated points in Ohio, New York, and Pennsylvania. He went to these races by automobile, and at times drove his own car. He also attended a horse sale in Harrisburg in 1940. He was not disabled mentally, and he was not confined to his home. In fact, he has carried on his farm and the various activities connected therewith without interruption, and has attended the meetings of his bank board. It is not essential that he should do, or be able to do, everything necessary to be done in the conduct of this enterprise. Butler v.Metropolitan Life Ins. Co., 122 Pa. Super. 159, 161,186 A. 395. But his own testimony discloses that he did, and had the ability to, perform a substantial and essential part of the duties incident thereto, even though he could not do manual labor. See Cantor v. Metropolitan Life Ins. Co., 108 Pa. Super. 1, 164 A. 145.
The burden was on plaintiff to prove that he was totally and permanently disabled under the provisions of the policies.Catalano v. Prudential Insurance Co. *Page 659 of America, 150 Pa. Super. 331, 28 A.2d 349. For this purpose the proofs were inadequate. Total disability includes more than that which is partial (Wuerfel v. Metropolitan LifeIns. Co., 343 Pa. 291, 297, 22 A.2d 747), and total disability for temporary periods is likewise insufficient to sustain an action under such policies (Gryszkiewicz v. Prudential InsuranceCo. of America, 150 Pa. Super. 587, 29 A.2d 210).
It is argued in behalf of plaintiff that he is unable to perform any one of his duties continuously, and that he cannot engage in any occupation that requires the use of judgment or supervision all of the time. Assuming this to be true, it would not constitute total and permanent disability. For total disability to be permanent it must be continuous. Gryszkiewicz v.Prudential Insurance Co. of America, supra. It is true that if the only work one can perform consists of "a few trivial and desultory acts or light work of a limited character and at irregular intervals" he is not barred from recovery (Pearlman v.Metropolitan Life Ins. Co., 336 Pa. 444, 448, 9 A.2d 432, 434), but it does not follow, merely because there are intervals when a person cannot work, that he is totally disabled.
Plaintiff called four medical witnesses who testified to his condition, his ailments and their permanency. Each of these experts testified that plaintiff was not able to perform any of the duties of any occupation which he was ordinarily capable of performing. This opinion evidence is contrary to the facts admitted by plaintiff himself, and consequently has no probative value to establish plaintiff's case. Proof of permanency of a disability is another matter, and may be established by the testimony of the physicians expressing professional opinion to that effect. Pearlman v. Metropolitan Life Ins. Co., supra, p. 451. One medical witness conceded that plaintiff could supervise; another acknowledged that plaintiff was not disabled mentally, that he *Page 660 was able to use his judgment, and that he did not know what plaintiff was doing; the third stated that he was aware that plaintiff was not confined to his home, and that he went about, and that at times plaintiff could supervise the racing of his horses and perform the duties of a gainful occupation, but that in his opinion plaintiff could not carry on a continuous occupation or carry on continually any of its duties; the fourth testified that plaintiff could use his judgment in training, racing, buying, and selling horses.
Finally, plaintiff contends that conducting a racing stable is not a gainful occupation, and that no one could ever be sure of a livelihood from it. But plaintiff was engaged in operating a farm. Breeding and racing horses were part of that enterprise; so was raising cattle and selling dairy products. Whether plaintiff made a profit from his horses is immaterial, although his income from this source was admittedly substantial. It has never been required that an occupation or business to be gainful must disclose a profit. We think plaintiff was engaged in a gainful occupation or business, and that his disability was not shown to be total or so disabling as to prevent him from carrying on his business affairs, and supervising his workmen and assistants in the conduct of the various branches of his enterprise.
To a large extent, this case is analogous to and controlled byCatalano v. Prudential Insurance Co. of America, supra. We there held that the insured's inability to do manual labor did not establish total disability where he had operated and carried on for profit his coal mines, timber business, and beer distributing business, and there was no medical testimony that he could not do work of a managing and supervisory nature.
In Butler v. Metropolitan Life Ins. Co., supra, we held that plaintiff who had an aneurism of the aorta and was unable to do any labor which required physical exertion was not totally disabled under the terms of *Page 661 the policy, as he had set up and was carrying on a retail coal and trucking business, which he managed, and, with the help of a workman or assistant who did the manual labor of delivering the coal, conducted for profit, although in the beginning plaintiff had driven his own coal truck but found that he was unable to continue to do so.
In contrast to the present case and the foregoing cases isFeigenbaum v. Prudential Insurance Co. of America, 144 Pa. Super. 412, 19 A.2d 542.
The third assignment of error is sustained.
Judgment is reversed, and is here entered for defendant.
1 Stipulation filed in court below whereby it was agreed that the case be heard and decided by the Superior Court. See Act of June 24, 1895, P.L. 212, § 7 (e), 17 Pa.C.S.A. § 189.
2 The following provisions appear in policies Nos. 2,633,691; 3,729,590:
"Total Disability. — Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the [said] Insured to follow a gainful occupation."
"General Provisions. — The Company may, before making any [disability] income payment or waiving any premium, require due proof of the continuance of total and permanent disability, but such proof shall not be required oftener than once a year after such disability has continued for two years. If such proof is not furnished on demand or if it shall appear to the Company that the [said] Insured is no longer totally and permanently disabled, no further [disability] income payments will be made or premiums waived."
The following provision appears in No. 3,729,590:
"When Benefits become Effective. — If, before attaining the age of sixty years and while no premium on this Policy is in default, the Insured shall furnish to the Company due proof that he is totally and permanently disabled, as defined above, the Company will grant the following benefits during the remaining lifetime of the Insured so long as such disability continues."
The following provisions appear in No. 2,633,691:
"When Benefits become Effective: If, before attaining the age of sixty years and while no premium under said Policy or under this provision for Disability Benefits is in default, and, . . . . . . said Insured shall furnish to the Company due proof that he is totally and permanently disabled, as defined above, the Company will grant the following benefits during the remaining lifetime of said Insured so long as such disability continues."
"Benefits in the Event of Total and Permanent Disability Before Age 60.
"When Such Benefits Take Effect. — If the Insured after payment of premiums for at least one full year, provided all past due premiums have been duly paid, shall before attaining the age of sixty years at nearest birthday and while this Policy is in full force furnish due proof to the Company at its Home Office that he has been totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, or from following any gainful occupation, and that such disability has then existed continuously for not less than sixty days, the Company will grant the following benefits."