I dissent.
The policy was issued to insure the appellant against his loss of earning capacity, in order that he might receive an income when “he ¿r, and will be permanently, continuously and wholly prevented * * * from performing any work for compensation, gain or profit, and from following any gainful occupation. (Italics supplied.)
And I agree that these terms of the policy should be given a reasonable rather than a literal construction, as applied to the facts in the case at bar.
Those terms are clear and unambiguous. But even under any paraphrasing, or construction most favorable to the insured, I do not see how he is entitled to1 prevail upon the record in this case. I cannot read into the language of the policy an insurance against partial disability, or pain, or lessening of mere agility. And that is all the insured has shown, viewing the record in the light most favorable to him.
This is not a case where the insured has been forced to abandon his “gainful occupation” and compelled to prepare himself for some other means of earning a living, or of being forced to sell lead pencils, or earning the pittance of a bailiff, or the like. For that reason, the cases relied on in the majority opinion do not seem to be in point.1 To go along with my brethren I would be forced to disregard what did happen and to speculate on what could have happened under a state of facts which does not exist from this record.
*550The record shows that his income has increased while pursuing the same occupation he followed as before his arthritis; albeit he is not as agile or vigorous at 72 years of age as before, nor is be now able to do the manual farm labor he previously did. His income from farm management is, and was during the years in question from $16,-000.00 to $19,000.00 a year, a not inconsiderable earning capacity. And any person who is able to do that in the management of a large farm and in a moderate dairying and cattle operation is inescapably engaged in a “gainful occupation.” Although he does not now do the manual farm labor he did before, he does do the work, which is, and before his arthritis was, required to actively manage his own operation; in addition he has since also managed and supervised a forty acre farm of a nonresident .sister, and continues to engage in community affairs of consequence as before. He has in fact increased his own acreage of farm land and his dairy herd. Such work of management cannot, in my judgment, be called mere secretarial work. Viewing tbe record as a whole and indulging all the presumptions in his favor as the Court must do on the motion under review, he can be said at best to be only partially disabled under any rule of construction of the terms of the policy, however liberal.
Nor do I think we are justified in laying down the rule in this case that a test of total disability, Hoover v. Mutual Life Insurance Company, 225 Iowa 1034, 282 N.W. 781, is whether or not the insured, considering his age, would be able to procure employment in the open labor market in the same capacity he is now engaged. It is pressing the realities of life too far to expect that a jury would find that even the most vigorous man at 70 would be hired by another at $16,000.00 to $19,000.00 a year to do the work required to actively manage farms and the like as done by the insured.
I agree with the majority that the law of Arizona should apply. But there is no adjudicated case by the Court of last resort in that State. And, inasmuch as we are *551“called upon to determine as best we may what the Supreme Court of Arizona would hold if confronted with the controversy now presented to us”, I think the opinion of the able and conscientious trial Judge, with long experience at the Bar and on the Bench in that State should not be wholly without persuasiveness.
Under the facts in this record, the testimony of the physician quoted in the majority opinion, together with all the other evidence, does not constitute “substantial, relevant evidence in favor” 2 of the appellant so as to have required the trial Judge to submit the case to the jury on defendant’s motion for a directed verdict.
And while the law of Arizona may not be settled as to what constitutes total and permanent disability under a policy of insurance such as here, it is the settled rule of Arizona that the final test on a motion for a directed verdict is whether or not the Judge would be compelled to grant a new trial if the case were then submitted to the jury and a verdict returned against the maker of the motion. Cope v. Southern Pacific, 66 Ariz. 197, 185 P.2d 772; Arizona Birmingham Copper Co. v. Dickson, 22 Ariz. 163, 195 P. 538, 44 A.L.R. 881; Southern Pacific Co. v. Fisher, 35 Ariz. 87, 274 P. 779. And while we have nothing here hut the “unrevealing words of the cold record”,3 the “dead page,”4 it must be remembered that such was not the case with the trial'Judge. He saw and heard the witnesses, including the plaintiff. The “tone of voice” and “gloss that personality puts upon speech” 5 were available to him as well as the degree of agility of the plaintiff. He was in a better position than we are to determine whether or not mere words constituted “substantial, relevant evidence” in favor of appellant so that if a verdict were returned in his favor, he, the trial Judge, in the conscientious exercise of his duty, would have been compelled to grant a new trial. His judgment should not be disturbed.
I would affirm.
. Erreca v. Western States Life Insurance Co., 19 Cal.2d 388, 21 P.2d 689, 141 A.L.R. 68, is particularly illustrative. The Court in that case repeatedly pointed out that the basis of its decision was that the insured had been compelled to abandon the management and control of his ranches. The following quotations are indicative.
19 Cal.2d at page 392, 121 P.2d at page 693. “As a result of his disability, respondent has abandoned his management and control of his ranches to his son' who is now acting as the sole overseer.”
19 Cal.2d at page 395, 121 P.2d at page 695. “Accordingly, the respondent must be deemed to bo totally disabled if he is no longer able to pursue the occupation of farmer or farm supervisor."
19 Cal.2d at page 396, 121 P.2d at page 695. “Admittedly, he can no longer do manual labor of any sort, it or can he *550supervise and manage farm operations as he did before.”
19 Cal.2d at pages 398-399, 121 P.2d at. page 696. “The evidence in this case shows that the respondent was unable to inspect his lands, direct the labor in progress, or perform any other essential supervisory functions.”
Particularly indicative of the fact that the California Court relied upon the abandonment of the management of farm operations by Erreca is the distinction made of certain cases cited therein. For instance in distinguishing Dietlin v. Missouri State Life Insurance Co., 126 Cal.App.15, 14 P.2d 331, 15 P.2d 188, the court pointed out that recovery for total disability was properly denied, because, 19 Cal.2d at page 398, 121 P.2d at page 696, “unlike respondent (Erreca), he was still able to perform the managerial and supervisorial activities connected with his business.”
As to Missouri State Life Ins. Co. v. Snow, 185 Ark. 355, 47 S.W.2d 600, the California court said, 19 Cal.2d at page 398, 121 P.2d at page 696:
“The insured was a farm operator who suffered a hip injury which disabled him from performing manual labor. He farmed through tenants, however, and his injury in no way prevented him from supervising farm operations."
As to Aetna Life Ins. Co. v. Person, 188 Ark. 864, 67 S.W.2d 1007, tbe court said “the insured * * * was a farm operator who contracted an arrested case of tuberculosis. Despite his ailment, he was able to manage his various farms in his usual and customary manner.”
The following quotation clearly shows the distinction between the Erreca case and the instant one, 19 Cal.2d at pages 398-399, 121 P.2d at page 696:
“The cases of Azevedo v. Mutual Life Ins. Co. of N. Y., 308 Mass. 216, 31 N.E.2d 559, 561; Fricke v. Mutual Life Ins. Co. of N. Y., 152 Kan. 525, 106 P.2d 677; New York Life Ins. Co. v. Stoner, 8 Cir., 109 F.2d 874; and Mutual Life Ins. Co. of N. Y. v. King, Tenn.App., decided December 10, 1940, are also factually different from the present one. In each of them, recovery for total disability benefits was denied a farm operator who, although incapacitated from engaging in manual iashs, was able to, and did, manage, supervise and direct the operations of his farms and attend to all the business in connection with them. The evidence in this case shows that the respondent is unable to inspect his lands, direct the labor in progress or perform any other essential supervisory functions.” (Italics supplied.)
. Butte Copper & Zinc Co. et al. v. Armerman, et al., 9 Cir., 1946, 157 F.2d 457-458; Cope v. Southern Pac. Co., 1947, 66 Ariz. 197-204, 185 P.2d 772.
. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Frankfurter, J. in dissent 332 U.S. at page 729, 68 S. Ct. at page 326.
. Idem 332 U.S. at page 730, 68 S.Ct. at page 326.
. Idem 332 U.S. at page 730, 68 S.Ct. at page 326.