(dissenting).
The jury refused to award penalty and attorney’s fees, thereby finding there “were just and reasonable” grounds for not promptly making the disability payments in controversy. If they had been more accurately instructed by the judge they might easily have found that the payments are not owing. The evidence summarized in the opinion as supporting the verdict for this recovery is that most favorable to Picard. There was much evidence not so favorable. It was shown that after his breakdown in 1931 he resumed his business for the Standard Oil Company, and earned that year in commissions $4,302, increasing to $8,346 in 1941. After paying his help.and all other expenses the net earnings shown on his income tax returns averaged about $3,500 per year. In 1942 he changed from a commission basis and began buying in bulk and reselling to his customers in his territory, incorporating the business; and he received from it for himself and wife $4,200 as annual salary. The corporation made some profits over and above this salary and its taxes. Observers saw Picard in 1943 and 1944 absent from home and calling on his trade for as much as six and seven hours per day, and making trips to New Orleans to the office of Standard Oil Company. His wife, though nominally an officer of the Corporation, did no work for it. His minor son, a student at college, drove him in his car, and helped some. Picard and his physician both testify that his work is not injuring him and that his health is better. An officer of Standard Oil Company testified that it is well satisfied with his conduct of his territory.
Without further detail it becomes evident that Picard is successfully carrying on a profitable occupation without injury to his health, using his son as chauffeur when he has to travel. This was one of his occupations when he fell ill in 1931, though on a smaller scale. He is still unable to run the store and manage a plantation as he was doing in 1931, then working ten to fourteen hours per day.
Now the Insurance Company had up to 1944 paid in disability payments about $30,-000 on life policies whose face was $14,000. It thought it should recover back the payments made after 1935, but that claim did not succeed because there was no fraud or mistake inducing them. But the policies provide that if after disability has been established and further premiums have been waived it appears “that the insured is able to perform any work or follow any occupation whatever for» compensation, gain or profit, no further premium shall be waived and no further income shall be paid.” This is the controlling agreement here. It does not mention, indeed expressly puts aside the occupation which was pursued before disability and says in the plainest words that if the insured becomes able to perform any work or follow any occupation whatever for compensation, gain or profit,” the payments are to cease. I would not construe these words with literal harshness, as requiring that one remain helpless, or not even able to work at intervals. The work which he can do ought to amount to a job, or the business occupation which he can follow ought to be a substantial one. To my mind, Mr. Picard has a substantial occupation which he continuously follows with substantial profit, notwithstanding he can no longer work ten hours every day, and must have a chauffeur to drive his car. Inability to drive a car is no serious matter. Neither the writer of the majority opinion nor of this dissent drives a car, but neither considers himself disabled. It was at least a jury question whether Picard is under his policies entitled to continued payments.
The charge to the jury did not fairly and fully put the case before the jury. After reading a long extract from Crowe v. Equitable Life Ins. Co., 179 La. 444, 154 So. 52, the judge said: “The test of total disability under these policy provisions is whether the person insured and claiming to be disabled could carry on his former or a similar business in substantially his customary and usual manner. In determining whether Mr. Picard is disabled under these policy provisions you should accordingly compare the business and working activities in which he was qualified to engage and did engage just prior to becoming ill with what you find him able to perform in his present condition. * * * If the insured is only able to do and only does light work as compared with his business and working activities prior to the time when he became impaired, he is entitled under the law of Louisiana to receive disability benefits under such a policy provision.” The following requests to charge of the Insurance *109Company were refused: “If the insured in such a contract is capable of engaging in any work of a substantial nature, regardless of whether it was the type of occupation he was engaged in at the time he took out the policy, or claims to have been disabled, he is not totally disabled within the policy provisions. “I charge you that if you believe that the insured has, as a matter of fact, been engaged in a gainful occupation or has performed any work for compensation, gain or profit, that you must find for the insurance company in this case.”
The last quoted request is in the very words of the contract. Why should it not be given? The one preceding correctly states that the gainful occupation now engaged in need not be the one followed when the disability began. The charges given made Picard’s ability to work and the occupation he was engaged in when he became ill the sole standard of comparison, which I think is most manifest error. Picard was then trying to do too much, as many men do, and broke down. He probably will never again be able to do all he was doing, but he has retained a part of his occupation and is prosecuting it with success. The only fact question I see is whether he is really running the business or not. I do not think the charge fairly presented that question, but confused it by referring to what he could do in 1931, as a false standard.
The district judge and the majority opinion speak of the “Louisiana law” and the “Louisiana rule” in such cases. There is no law or rule peculiar to Louisiana. This court on due consideration so held in Metropolitan Life Ins. Co. v. Pitcher, 5 Cir., 108 F.2d 621, after examining Crowe v. Equitable Life Ass’n Soc., 179 La. 444, 154 So. 52, which is said to have established the peculiarity. These policies were taken out in 1918 and 1919 and the Crowe case was decided long since. They mean now what they meant when issued, being in plain English. But the Louisiana court has not undertaken to establish any new law or rule for that State in the Crowe case and those following it. It took its law by quotation from standard text books, 7 Couch on Insurance, § 1670 and 14 Ruling Case Law, Insurance § 491. The quotations however relate to the question of original totality of the disability in the occupation then followed. Couch deals with other occupations in Sections 1686 and 1687. Ruling Case Law refers to them in Section 491. In none of the Louisiana cases has the question of developing another substantial occupation been dealt with. In one (Strauss v. New York Life Ins. Co., 204 La. 202, 15 So.2d 61) the insured was given $15.00 a month by a friend to keep some books, but that was manifestly not substantial. The cases were all decided as presenting mixed questions of law and fact. I do not think the court meant to establish as a rule in Louisiana that the plain meaning of the contract may be disregarded, because that would be not only unlawful but judicially dishonest. If it did mean to do that, I would still think the federal court ought not to follow it touching contracts made before such a rule was announced.
The decision of this court in Metropolitan Life Ins. Co. v. Pitcher, 5 Cir., 108 F.2d 621, was correct, and has never been disapproved by the Supreme Court of Louisiana. The requests to charge made in this case were based on it. Our case of Mutual Life Ins. Co. v. Davis, 5 Cir., 142 F.2d 332, is also correct. The insured there could do no work and had done none; we held the fact that he had an ample income from his property and investments did not prevent his recovery of disability payments. No question of the charge to the jury was presented. In our case of Mutual Life Ins. Co. v. Daigle, 5 Cir., 142 F.2d 1000, we upheld a jury finding that the insured was not conducting the new business attributed to him. There was a request to charge the jury about a new business which was refused; and this was rightly held no error for the reason there was no evidence to base it on. The other reason given that it was contrary to the law of Louisiana was superfluous; and I thought and still think of doubtful correctness; and the request was too broadly worded.
In the present case there is abundant evidence amounting almost to demonstration that Picard is carrying on a new business amounting to a substantial occupation, though not his main occupation when he became ill. If so, the insurance company does not have to continue to pay disability benefits under its contract nor continue to carry the life insurance without premiums. The charges given and refused which dealt with this matter are I think reversible error.