This suit was brought by Dr. Wilton McCarthy, a surgeon of Des Moines, for recovery upon an accident insurance policy issued to him by the United States Fidelity & Guaranty Company. The doctor sustained accidental injuries on the 6th day of December, 1922, and claims that the injuries so received resulted in continuous total disability. The insuring company admits the issuance of the policy, that it was in full force on the 6th day of December, 1922, and that the doctor did sustain accidental injuries on that date, but it denies continuous total disability. It paid him the weekly indemnity specified for total disability for the first year after the accident. It then refused to pay further, and the doctor sued and recovered as for total ", disability for the period from December 6, 1923, to October 22, 1925. The company • paid the judgment. Thereafter the doctor brought this suit claiming further continuous total disability from October 22,1925, up to November 7,1929. The injury occasioned by the accident was to the doctor’s right hand, and it appearing on the trial beyond dispute that the hand was no better than it had been, the doctor contended that the issue as to whether he was totally disabled was the same issue that had been tried between himself and the company in the first suit, and that it was settled in his favor by that judgment. He *4aJso: contended that on the whole evidence every fact essential to his recovery had been so established that reasonable minds could not differ as to his right to recover. The trial court sustained his motion to direct a verdict for him -on these grounds, and the company appealed from, the judgment on the directed verdict. On the appeal, 33 F.(2d) 7, 12, 70 A. L. R. 1447, this court held that it was established by the judgment in the first suit that the doctor, “during the period of time for which indemnity was sought, and at the termination thereof, did, by reason of the injury to his hand, suffer total disability under the terms of the policy; that is, was unable to perform any and every duty pertaining to his occupation as a surgeon.” It held further, however, that “the ultimate fact in the previous suit as to disability was total disability during the period for which indemnity was sought. The ultimate fact here is total disability for an entirely separate and definite period of time.- That question was not in issue, and could not have been litigated in the former action. Each case stands upon its own bottom.” This court then turned to the question .of the evidence on the matter of total disability and held that it did not justify a directed verdict for either the doctor or the company, but presented “peculiarly fact questions for a jury.” The case was therefore reversed and tried again and the question whether there was total disability during the period covered by the suit was submitted to the jury. There was a verdict in the doctor’s favor, and from the judgment thereon the company prosecutes this appeal presenting assignments of error too numerous to discuss in detail.
Aside from the loss of one of his eyes in another accident, and the injury to his right hand involved in this ease, the doctor enjoys good health so that the payment to him of $250 a week is, and apparently will be, a much greater burden on the company than if he had been killed or had suffered loss, of limbs. The company in its brief before us computes that it may have to pay the doctor some $280,000 if we sustain the judgment and the doctor lives out his expectancy. But on this phase of the ease we feel bound by what this court said on the former appeal. It “is of no moment * * * and is not material in this ease. * * * It [the company] so wrote the contract.”
Neither are any of the assignments relating to the trial court’s refusal to take the ease away from the jury to be sustained. There is no claim that there was any new evidence on the second trial of a character to justify the trial court in departing from the explicit holding of this court that the questions were fact questions for a jury. There was no dispute about the issuance of the policy by the company nor that the policy was in full force on December 6, 1922, nor that the doctor sustained accidental injury within the coverage of the policy on that date, nor that the injuries so sustained occasioned some disability. There was no dispute that the copy of the policy and the application therefor attached to the doctor’s petition as an exhibit were true copies, nor that notice had been given. Nor was there any substantial dispute as to the condition of the doctor’s right hand occasioned by the accident. The only question left in the case after the first appeal to this court was as to the extent of the disability during the particular period, and whether it was continuously total within the meaning of the provisions of the policy relied on.
Those the doctor relies on are as follows: His application (expressly made a part of the policy) states: “I am with self — surgeon (only)”: “My occupation is surgical practice” : “The duties of my occupation are fully described as follows: Surgeon (only),” and the policy says “United States Fidelity So Guaranty Company * * * does hereby insure Wilton McCarthy * * * by occupation Surgical Practice * * * f0r a weekly accident indemnity of two hundred fifty dollars, * * * Schedule II. Total loss of time. Or, if such injury * * * shall cause continuous total disability, and prevent the insured from date of accident, from performing any and every • duty pertaining to his occupation, the Company will pay him the weekly accident indemnity above specified, for the period of such disability.”
On the trial from which this appeal is taken the doctor swore as to the direct result of his accidental injury that there was no sensation left in the major part of his right hand, and only the little finger and half of the palm of the hand were really useful so that he could not properly diagnose by two handed palpation nor use the instruments whose use is necessary in surgical practice. That although he had submitted to five operations and long courses of treatment in the attempt to recover the use of the hand, and to fit himself for surgical practice, the hand had become no better, but worse. He described what his occupation in “surgical practice,” “by himself,” “surgeon (only),” had been for more than nineteen years be-' *5fore the accidental injury, and declared that he was and had been rendered totally unable to go on with it. He said that he understood too well what the responsibilities of a surgeon are to go back to his office and take his place there. That “you have to deal with life” and he felt all the time, knowing his physical incompeteney, that it would be criminal and malpractice for him to attempt to practice surgery. Five of his professional friends corroborated him in practically all of his testimony, and undoubtedly' a prima facie ease was made.
The theory of the defense is very greatly elaborated by learned and able counsel for the company in its pleadings, testimony, numerous requests for instructions and requests for special findings, assignments of error and forceful arguments. A principal complaint here is that the theory of defense was not fairly submitted to the jury by the trial court.
* Admittedly it had to he boiled” down for submission to a jury. So analyzing the mass to define the theory we find that it proceeds from the obvious fact that the performance of the duties of every professional occupation includes and presupposes in the professional the exercise of many trained and developed powers. Conspicuously every such occupation includes the duties skillfully to observe, to estimate, to apprehend and to prepare for conditions and to consult with others about them and to resolve upon them preceding, accompanying and following professional action. And in all the professions there are specialists. There are theologians who do not preach, lawyers who try no eases, doctors who administer no potions and surgeons who never incise. Observing that, surgical practice in no wise differs from all professional occupations in this general aspect, defendant centered upon a certain number of such incidents of the surgical practice, like diagnosis, consultation, plre-operating and post-operating attention and so forth, and developed that cripples could do those things and some other things and make a living at it, and it contended that the doctor could likewise. By agreement between the parties the doctor called five witnesses besides himself, and so did the company. All of the company’s witnesses were crippled, some worse than the doctor, and all professed to be successfully engaged in surgieal practice, some phase thereof, and all of them agreed that surgieal practice could be carried on by one unable to use instruments. These witnesses contradicted the plaintiff’s witnesses as to what the description, “surgical practice^” covered, implying that it did not necessarily include the ability to use surgical instruments or to operate with them on human beings. It was a fair defense and no impropriety is charged in the conduct of it. But however elaborated the defense remained as succinctly epitomized in defendants’ answer, “that' by reason of the ability of the plaintiff to do and perform many of the duties hereinabove' detailed, and many other duties pertaining to the occupation of surgieal practice, the plaintiff is not entitled to recover.”
The trial court reviewed before the jury categorically all the claims set up in the answer as to what the doctor could do in the way of carrying on his occupation, and the denial of total disability by the company, and its grounds for such denial, and correctly put the burden on the doctor to show his claimed continuous disability during the period involved within the meaning of the policy provisions. As to the meaning of those provisions covering total disability, the instruction was, “Total disability, within the terms of the insurance contract in this ease, means inability to do all substantial and material acts necessary to be done in carrying on plaintiff’s occupation of surgieal practice as distinguished from trivial or incidental acts. It means an inability to perform all the duties necessary to the practical prosecution of said occupation.” In giving this instruction the trial court was not moved to use the verbiage because it is particularly choice but solely because another trial court had used the same language and it had been, carefully considered and found sufficient by the Court of Appeals in the District of Columbia in Metropolitan Life v. Bovello, 56 App. D. C. 275, 12 F.(2d) 810, 51 A. L. R. 1040. The court also instructed:
“If you find that the plaintiff can perform some trivial, incidental acts connected with the practice of surgery, but is unable to perform any and every material and substantial act in the practical prosecution of the practice of surgery, you would be warranted in finding that he was totally disabled within the terms of the contract in this ease. On the other hand, if you find there are any substantial and material acts necessary to be done in carrying on such occupation whieh the plaintiff could perform during the period in controversy in this suit, then you would not be warranted in finding a total disability within the meaning of the contract of insurance. * * •
*6“If you find that he was able to perform during this time any of the susbtantial and material duties of his business and occupation as a surgeon, that is, all this time during this period that he was able to do — some of the time during all this time he was able to perform any duty, any material and substantial duty pertaining to the practice of surgery, then you must, of course, return a verdict for the defendant.”
Instructions added in colloquy with counsel before the jury added to the clear definition of the issues and the defense as follows:
“Mr. Davis: The defendant asks the Court to instruct the jury on the proposition of partial disability, as defined in the contract; and that even if they find that the plaintiff was permanently injured, but that the disability resulting from the injury was partial only that there could be no recovery in this ease.
“The Court: I have eertainly instructed the jury as to that: that they find, before the plaintiff can recover, that he is unable to perform any of the material and substantial duties of the practice of surgery. * * *
“Judge Bradshaw: The question in this suit is whether or not he is totally disabled.
“The Court: I think so.
“Mr. Davis: And if he is only partially disabled he can not recover.
“The Court: Yes: we will put that in. If he is only partially disabled he could perform part of the duties of his occupation and part of them he couldn’t. Certainly before he can recover he must be unable to perform any of the substantial and material duties of the surgical practice.”
The court made no attempt to detail all of the duties of the occupation nor to fix as a matter of law which were necessary or which could be left out. He defined the issue and stated the law and submitted the determination to the jury. ■
Such accident policy provisions have been before the courts time out of mind. It has always been obvious that an absurdly literal construction could be put upon sueh words as “any and every duty pertaining to my occupation” which would reduce the eoverage for total disability to the states of coma or absolute mental and physical helplessness. But the fact that money is paid and accepted for accident insurance under these policies compels attributing good faith ■to the parties and a construction of the words used in the policy conformable to an honest intention to indemnify against total inability to practically carry on the occupation specified. The opinion of this court on the former appeal assumed some such reasonable construction or it would have approved an instructed verdict for the company. It appears as plainly on that appeal as it does - now that the doctor’s injuries were to his hand only and that the doctor’s health was good save for the lost eye and the crippled right hand. Accordingly it must be deemed well and firmly settled that sueh total disability provisions of any accident policy as here presented do not limit recovery to eases of coma or complete helplessness, nor is recovery precluded because the insured gets well enough to follow some other occupation than the one covered by the policy. The trial ¿court correctly stated the defense and the law in its instructions. Metropolitan Life Ins. Co. v. Bovello, 56 App. D. C. 275, 12 F.(2d) 810, 51 A. L. R. 1040; Standard Accident Ins. Co. v. Bittle (C. C. A.) 36 F.(2d) 152; 41 A. L. R. 1376; 51 A. L. R. 1048.
The company’s requests for instructions and special findings reflect that the company wanted the trial court to split up the issue of total disability and find or have the jury find specially as to things the doctor could or could not do pertaining to his vocation, and it complains here because the trial court refused all sueh requests. It recurs constantly in its argument to the partial disability clause of the policy which contains the words, “one or more duties pertaining to the occupation,” and argues that the two clauses may be read together to its benefit. The clause is as follows: “Partial Loss of Time. Or if such injury shall from the date of the accident or immediately following total disability, prevent the insured from performing one or more material duties pertaining to his occupation. * * * ” Obviously the words of this clause, “prevent the insured from performing one or more material duties,” like the words of the other clause, “prevent the insured from performing any and every duty,” could be absurdly construed to describe a state of helplessness. In a strained sense one flat on his back unable to move is merely “prevented from performing” more duties pertaining to his occupation than the lone duty of thinking about it. But the same assumption of good faith in the parties prohibits the construction, and the courts construe the clause as consistent with honest intention to indemnify against partial disability. Each of the clauses, however, covers *7completely its subject-matter. To try to commingle them produces only ineoherency. The doctor sued on the total disability provisions, tendered his proof thereon, and the court rightly held that the only issue was total disability vel non under these provisions. There was no error in refusing to split upon the “one or more duties” referred to in the other clause, nor did that clause throw light upon or qualify the meaning of the total disability clause settled and established by the courts in such cases.
Complaint is made that an expert witness was permitted to express his opinion on the ultimate issue whether Doctor McCarthy was able to do surgery. All of the reasons upon which the opinion was predicated were fully disclosed by the witness, and if technically objectionable the questions and answers were entirely without prejudice to the company. It was perfectly manifest to the jury that it was the opinion of the doctor and all of his witnesses that he could not carry on his surgical practice by reason of being totally disabled from doing so and that the company’s doctors were of the contrary opinion. The testimony could not have prejudiced the company. U. S. v. Phillips, 44 F.(2d) 689 (8 C. C. A.).
Appellant also claims that it took exceptions to a definition of surgery given by the court. The definition was right, and not excepted to. The colloquy was as follows:
“Mr. Davis: If the Court please, the defendant excepts to the definition of surgical practice, limiting it solely to mechanical appliances, as too limited in its character, not sufficiently broad.
“Court: I didn’t limit it to mechanical appliances.
“Mr. Davis: Well, I don’t think the definition was quite broad enough, if Your Hon- or please, and the definition was limited to ‘surgery’ instead of ‘surgical practice’ as used in the contract.
“Court: I was defining the word ‘surgery.’ I didn’t define the words ‘surgical practice.’
“Mr. Davis: Defendant excepts. We believe the court should give a definition of ‘surgical practice’ as a broader proposition than mere mechanical appliances and including the material duties of surgical practice.”
It is clear that what was wanted by defendant was a definition of “surgical practice,” not “surgery” and that no error in the definition of “surgery” was called to the court’s attention. As to surgical practice the court told the jury that “they (the company) claimed that the doctor here was insured in his practice of surgery and that the practice of surgery is a little broader than surgery itself. That, gentlemen, is a fact question for you to decide under all the evidence in the ease, as you have heretofore been told.” The assignment should not be sustained.
Complaint is made that the trial court said nothing to the jury about the duty of the doctor to use good faith in trying to practice surgery. It is sufficient to note that no charge of bad faith in this regard was charged in the company’s answer and no issue tendered on the subject. A request for instruction on the matter was included among some twenty-five handed to the court on the trial but there was no error in confining the instructions to the issues made up.. Nor could there have been any prejudice from the omission. Whether the doctor was malingering or actually disabled was before the jury every moment of the trial. The jury must have believed that the doctor could not practice surgery if he tried. The word “disabled” carries that implication clearly and unequivocally. To couch the same thought in the terms of duty adds words but no substance.
On the whole case it is evident that reasonable minds may well differ as to whether a man of Doctor McCarthy’s physical and mental vigor has been totally disabled for surgical practice. But it has been settled by the jury upon a fair trial most ably contested by counsel on both sides.
The judgment is affirmed.