I concur in the reversal of the judgment for the reasons stated in the opinion of Mr. Justice MOFFAT. I cannot agree with all that is said respecting waiver of furnishing proof of disability. No such issue was raised in the pleadings. 14 R.C.L. 1431. Plaintiff did not plead that defendant waived the filing of proof of disability, but, on the contrary, pleaded in his complaint that proof of disability was duly filed within a reasonable time and that the company having denied liability on the sole ground that plaintiff's injuries are not such as come within the provisions of the policy it thereby waived its right to object to the sufficiency of the proof furnished. The court received, without objection, evidence of the submission to the company of proof of *Page 507 disability in April of 1932. No objection was made by the defendant touching the sufficiency of the proof or the timeliness of the furnishing thereof. No point is now made with respect to such matters. There being no issue with respect to waiver of proof, the evidence tending to show waiver should have been excluded as irrelevant and immaterial, and the instruction given by the court as "a matter of law" that the company had waived due proof of plaintiff's disability on the 3d day of March, 1931, was erroneously given.
I concur in the holding that the Southern Pacific Lines was not the agent of the insurance company for the purpose of waiving proof of disability, but believe all the evidence tending to show waiver was immaterial and irrelevant to any issue and should have been excluded on that ground.
The policy of insurance provides that:
"The first monthly installment will be paid upon receipt of the proof of total and permanent disability."
If it be found that plaintiff is entitled to recover, the date when payment should be made is thus fixed by contract between the parties, and that date is the time of furnishing "due proof of total and permanent disability" to the company. That is the date when payments start and interest begins to run. There is no conflict in the evidence that this was April of 1932.
No reference is made in the prevailing opinion to the giving of instruction No. 8. Exception was properly taken by the defendant and the assignment of error argued on this appeal. Our silence respecting this assignment will have the effect, at least as to this case, of approving 8 instruction No. 8, and on a retrial the trial court would feel bound to again instruct the jury in the same language. I think part of the instruction as given is not a correct statement of the law applicable to the insurance policy in question. Defendant excepted to the whole instruction and also specifically to the following portions of it:
"Therefore, if you find from a preponderance of the evidence in this case, that prior to his sixtieth birthday, the plaintiff, Ralston, suffered *Page 508 injuries which caused a permanent disability, as that term is defined in these instructions, and if you further find from the evidence in this case that such disability is total, as this term is defined in these instructions, thereby preventing said Ralston from engaging in his occupation as a railroad brakeman, or from engaging in such other fairly remunerative work as he is able to do, considering his training and experience, then and in that event, you will be justified in finding that said Ralston is `permanently and totally disabled' under the terms of said policy of insurance."
The vice of this instruction is that the jury are instructed that plaintiff is entitled to recover if he was disabled from "engaging in his occupation as a railroad brakeman," or, in the alternative, "from engaging in such other fairly remunerative work as he is able to do," etc. That is, if the jury find he cannot perform the duties of a railroad brakeman, he is entitled to recover even though there might be other remunerative work he could perform. This is tantamount to an instruction to the jury to return a verdict for the plaintiff, because, irrespective of what other work plaintiff might or might not be able to perform within his capabilities in his present condition, it was quite evident he could not perform the very exacting duties incident to his occupation as a railroad brakeman. The insurance policy did not insure against disability which prevented him from performing the duties of "his occupation" as some policies do, but from "engaging in any occupation or performing any work for compensation or profit." While the instruction given might have been appropriate had the policy insured against disability from performing the duties of "his occupation," it is not a correct statement of the law applicable to a policy such as this which insures against "engaging in any occupation and performing any work for compensation or profit." In Metropolitan Life InsuranceCo. v. Foster (C.C.A.) 67 F.2d 264, 266, an instruction in very similar language was condemned, the court saying:
"We are of opinion that under the policy before us an inability to follow insured's regular occupation or others within his training and experience would not be total disability if there was work not within *Page 509 his training and experience but within his capacity which without injury to his health he could perform for compensation or profit. Of course, the work must be substantial and not trifling, amounting to a job, an occupation. The judge might well charge as he did that a total disability under this policy does not necessarily imply an incapacity to do any work at all, or that the person must be bedridden, but he erred in restricting the ability to work to the regular occupation of the insured as brakeman and to those occupations within his training and experience, all of which the insured testified required two hands."
See, also, Travelers Ins. Co. v. Cox (Tex.Civ.App.)86 S.W.2d 844.
This court in recent cases has approved instructions defining the term "total and permanent disability," under policies somewhat similar to this. In Gibson v. Equitable LifeAssurance Soc., 84 Utah 452, 36 P.2d 105, the instruction approved is as follows:
"`You are instructed that the phrases "Total and Permanent Disability Provision," of the insurance policy in question, to-wit: "Wholly disabled" and "Wholly and presumably permanently disabled thereby for life from pursuing any and all gainful occupations," mean such disability as would prevent the insured from, with any decree of success, within the range of his normal capabilities, earning wages or profit in some occupation or gainful pursuit, and that such disability is founded on conditions rendering it reasonably certain throughout the person's life.'"
In Miller v. New York Life Ins. Co., 84 Utah 539,37 P.2d 547, 549, the following instruction was given by the trial court, and although not attacked so the court would be required to directly pass on the same, it was referred to with approval:
"`You are instructed that total disability is any impairment either of the mind or the body rendering it impossible for the disabled person to follow continually any substantially gainful occupation; it is deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.'"
"`You are instructed that one is totally disabled within the meaning of the policy of insurance mentioned in evidence when he is so far *Page 510 disabled that he can not, with any degree of success, within the range of his normal capabilities, earn wages or profit in some occupation or gainful pursuit.'"
In Colovos v. Home Life Ins. Co. of New York, 83 Utah 401,28 P.2d 607, 609, this court construed the language in question as follows:
"In this matter the court is called upon to construe the contract, particularly the scope and meaning of the following lines set out in the paragraph above quoted: `* * * Prevented from engaging in any occupation and performing any work for compensation or profit.' It is the opinion of this court that the term used, `engaging in any occupation and performing any work for compensation or profit,' has a well-defined meaning. It means ability to follow any recognized occupation, and to do substantially all the acts that are necessarily and usually performed by one who follows that occupation. It could not be said that a man could engage in an occupation if he were able to do any one or two of the acts customarily performed by one engaged in such an occupation. Furthermore, there is an element of continuity in following an occupation; that is, the ability to continuously perform substantially all of the ordinary acts which, in the ordinary course of events, a man following such an occupation is called upon to perform. Furthermore, `compensation or profit,' as used in the paragraph quoted from the policy, is qualified, and relates to the preceding words, `engaging in any occupation and performing any work,' and contemplates that the compensation or profit to be received from the occupation engaged in, or work done, shall, in a fair sense, be remunerative, and not merely nominal."
For the reasons stated, the instruction as given by the trial court should be disapproved. This court, in the cases cited, has taken a liberal view with respect to the meaning of the phrase "engaging in any occupation and performing any work for compensation or profit," and I do not feel that an instruction which goes farther in favor of the insured should be approved, and certainly I am not in favor of approving one which would permit the jury to find that such disability existed if the insured person was merely injured so that he could not perform the duties of his then occupation. *Page 511