#### CATES v. JEFFERSON STANDARD LIFE INS. CO.

No. 4896.

Court of Appeal of Louisiana. Second Circuit.

Feb. 5, 1935.

E. W. Browne and P. N. Browne, both of Shreveport, for appellant.

Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, for appellee.

TALIAFERRO, Judge.

In the year 1920, defendant issued to plaintiff a policy of life insurance containing the following “Total and Permanent Disability” provision:

> “If after one full annual premium shall have been paid on this policy, and before default in the payment of any subsequent premium, the insured shall furnish to the company due proof * * * that he has for more than sixty days prior to the filing of such proof been wholly and continuously disabled by bodily injuries or disease other than mental, and presumably will be permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, provided, that such total and permanent disability shall occur before the insured shall attain the age of sixty years, the Company by endorsement in writing on this contract will agree to pay—

> “(a) The premiums which shall become payable after the accrual and proof of said disability and during the continuance thereof, and

> “(b) Commencing after six mbnths from the acceptance by the Company of the original proofs of disability, provided the insured is still disabled, a monthly income during the after lifetime of the insured prior to the maturity of this policy as an endowment or death claim of one one-hundredth of the face amount of this policy. The amount otherwise payable at the maturity of this policy shall not be reduced by any premiums or installments paid under the above provisions.”

Plaintiff, believing his physical condition to be such that he is totally and permanently disabled and unable to pursue any occupation for profit or remuneration, instituted this suit to recover $50 per month, beginning November 1, 1933, and for each month thereafter for the balance of his life. He alleges that for more than twelve months prior to flung this suit his physical condition has been, and is now, such that he is entitled to the disability benefits provided for in the above-quoted provision of the policy; and that during the month of April, 1933, he furnished proof of his disability to defendant, as required by. the policy, but that payment to him has been refused. The specific ailments from which he suffers, and has suffered from, causing the condition aforesaid, are alleged and proved to be: Chronic interstitial nephritis (Bright’s disease); arteriola sclerosis (hardening of the smaller arteries); malignant hypertension (high blood pressure) ; cardiac hypertrophy and dilatation (thickening of .the muscl.es of and enlargement of the heart, superinduced by high blood pressure).

*169Defendant denied specifically that plaintiff is totally and permanently disabled, and that any amount is due him under the .terms of the policy sued on; and avers that for a period of eleven months and more, preceding the date of filing this suit, he was not continuously and wholly disabled from pursuing any occupation whatsoever for remuneration or profit, within the purview of the policy. In the alternative, defendant contends that, even if plaintiff is entitled to recover any benefits under the policy, such recovery should not be in excess of the amounts accrued to date of judgment.

The lower court gave judgment for plaintiff as prayed for, and defendant appealed.

Plaintiff was sworn as a witness in his own behalf. After he had testified rather briefly in response to questions by his counsel and the court,' he was consigned to defendant’s counsel for cross-examination. They asked no questions. He was excused. Other witnesses then testified. When plaintiff closed his case in chief and his counsel announced that he rested, defendant, at the beginning of introduction of its evidence, called plaintiff for cross-examination. On objection from plaintiff’s counsel that the right of cross-examination had been tendered and not availed of, the request of defendant was refused. It did not cross-examine plaintiff at all. To this ruling defendant excepted, and the record contains a formal bill of exception incorporating the.f acts of the matter. It is defendant’s contention that the right to call plaintiff as under cross-examination is guaranteed to it-by Act No. 126 of 1908. This act says: “Be it enacted by the General Assembly of the State of Louisiana, That in all causes pending and untried or to be hereafter instituted in any court of this State, the parties litigant shall be entitled to examine their opponent, as under cross-examination, and in such event the parties thus examining op-* ponents shall not bé held as vouching to the Court for the credibility of the opponents so placed upon the stand, or as estopped from impeaching, in any lawful way, the testimony given as herein provided for.”

It will be observed that under the latter part of this law a defendant is fully protected against certain results that would have been visited upon him prior to passage of this law, if he had sworn plaintiff as a witness in his (defendant’s) behalf and the testimony given by him had been untrue or in other respects harmful to defendant’s case. .By this act, defendant, when he calls plaintiff to testify, is not held to have vouched for his credibility, and is not estopped from traversing his testimony when given under such circumstances. It is our opinion that this act may be availed of by the defendant in a pending suit only when the plaintiff has not taken the stand as a witness in his own behalf. When he has testified for himself, defendant may or may not cross-examine him, but, if he does so, he is not bound by the answers elicited thereby, nor is his credibility to any extent vouched for by defendant because of such cross-examination. In the present case, we do not see the application of the 1908 act. The situation is the same as though the act had never been adopted. Plaintiff, when he tendered himself as a witness, was of the same status as any other witness sworn in the case. At the proper time defendant declined to cross-examine him. Out of the regular order of trial procedure, defendant undertook to do that which he had declined to do in regular order. The proposition addressed itself to the court’s discretion. Had defendant's request been granted, the testimony adduced thereunder would be properly before us, but, since the request was refused, we do not think the ruling can be said to amount to reversible error. If defendant’s contention is well founded, then it could have deferred cross-examining all of plaintiff’s witnesses until he had rested. It was never contemplated that such a course be tolerated by a trial court.

Article 477 of the Code of Practice provides that, after plaintiff has closed his side of the case, completed the introduction of his evidence, “the defendant shall bring his witnesses, and produce the proof in support of his defense” and the plaintiff may then bring witnesses to rebut evidence of defendant’s side. In this case plaintiff had “dosed his evidence,” and,, when defendant called plaintiff for cross-examination, ,he was not “brought” as a witness for defendant. It is true that it has been held that the provisions of article 477 are not immutable, but directory. This does not argue against the correctness of the lower court’s ruling, but rather supports the thought that only a judicial discretion was exercised therein, and that no substantial right has been denied nor injustice committed.

Under the literal verbiage of the provisions of the policy sued on, plaintiff is entitled to the benefits therein stipulated only when he has furnished proof to the insurer that (1) for sixty days immediately prior" to. filing the proof he has been “wholly and continuously disabled” by bodily disease, other than mental; and (2) presumably will be permanently, continuously, and wholly prevent-' *170ed thereby from pursuing any occupation whatsoever for remuneration or profit; and (3) when these conditions have been met, payments under ■ the policy will only begin six months after acceptance of the proofs,' provided the disability still exists.

Several years' ago plaintiff’s right leg was amputated at the middle thigh on account of osteomyelitis. In January, 1933, he suffered a broken shoulder from a car collision. He spent some days at Hot Springs, Ark., in May, 1932, for his health, and, when examined by a physician there, it was discovered that his kidneys were involved and his blood pressure was much above normal. Alarmed at this intelligence, on his return home, near ■Shreveport, &a., he immediately had Dr. Her-old to make a close physical examination of his body. The findings of the physician in Hot Springs were confirmed by Dr. Herold. He found that plaintiff was suffering from all of the ailments detailed in his petition, which we have heretofore mentioned. Plaintiff has been under his observation regularly since that time. Dr. Kerlin, who examined plaintiff a day or two before the case was tried, substantially agrees with Dr. Herold in this respect. There is no serious variance in their findings. There is some material difference in their opinions on the question of the extent and nature' of the disability to plaintiff directly resulting from these diseases and their collateral effect upon the organs of the body.

To the lay mind, it seems obvious that a man afflicted with all these troubles, who has devoted his life to working in a retail store and overseeing farming activities, as plaintiff appears to have done, would certainly be disabled wholly to perform, to a substantial degree, the work and labor of said callings, and especially so when we take into consideration the fact that he has only one leg.

Plaintiff is suffering from chronic Bright’s disease. Dr. Kerlin found two tumor masses in the abdominal quadrant which had strained the kidneys to about twice their normal size. The kidney' condition, which is conceded to be incurable, has, to a large extent, if not entirely, superinduced the other complaints, bringing about organic changes. Both doctors thought that by careful treatment, diet, and proper regime plaintiff’s condition would improve temporarily, but neither would say that he could possibly be. restored to good health, and both said it was most probable that the diseased kidneys would ultimately shorten his life.'

Dr. Kerlin’ madé' a written report of his findings and conclusions after examining plaintiff on January 19, 1934, of which coun-selon both sides were provided with copy, wherein he concludes: “While I am aware, that the findings in this case are- sufficient to bring about total and permanent disability, I am of the opinion that the claim of total disability in this ease is mostly subjective, however, I would not be willing to assume the responsibility of saying he is not totally and permanently disabled to pursue a gainful occupation.”

He modified the report slightly' by saying that he thought plaintiff could perform some work in his usual business, but said also that he could not do a man’s work, if he should be under the control of some one else as to his movements. In other words, if he should be engaged in a business of his own, his condition was such as to render some substantial service to it, but, if he was working for some other person, being required to go and come regularly and to take instructions as to the manner and means of performing his duties, he was not able to do a man’s work.

• Dr. Herold was positive that plaintiff’s condition was such, and had been so-since the early part of 1932, that he could not pursue a gainful occupation. Plaintiff said, so far as he knew, he had no capacity .for doing, work whereby he could make a living or earn money.

Our own conclusions, from all the testimony in the case, are that plaintiff’s disability arose from diseases progressive in character and incurable; that he might intermittently engage in some sort of work which he has been capable of performing in the past,- but, for him to do so’ regularly and continuously, the disability would become literally complete or total, causing him to be a charge upon his people or the public, and unquestionably hastening, death. ' This condition has been present since 1932. These findings are sufficient to sustain plaintiff’s demands.- Pew people, if any,’ are so fortunate as to have employment of such a pleasant character that they may work at -it as little, and when, and as long, as they desire. Operating a plantation store or -superintending the farming activities of a plantation requires constant and thoughtful attention of those charged with their conduct.

On the face of the provisions of the policy, the insured would have to be nr a bedridden condition, or have all limb's paralyzed, or afflicted by other disease producing total lack of ability to move about, before he would be entitled to recover thereunder.- The language of these provisions is s® definite and positive ®n its face that, if the insured, a merchant or *171farmer, or other kind of laboring man, were suffering from disease, sufficient in its intensity to prevent him from discharging the duties of his particular calling, though not sufficient to prevent him from selling peanuts or newspapers on the streets, or shining shoes, in such case he would not be eligible to recover the benefits stipulated in the policy. We know such a strict construction of the intent and meaning of the insurance contract was not intended. The law certainly does not view it in such a strict manner. We think the following, taken from 14 Ruling Case Law, § 491, correctly interprets contracts of the character we are considering, and places thereon a construction fair to insurer and insured:

> “Total Disability. — Accident policies usually provide for periodical indemnity for ‘total disability,’ or what is usually considered its equivalent, for injuries disabling the insured from transacting any of the duties pertaining to his occupation. Total disability is necessarily a relative matter, and must depend chiefly on the peculiar circumstances in each case. It must depend largely upon the occupation and employment and the capabilities of the person injured. The rule prevailing in most jurisdictions is that the ‘total disability’ contemplated by an accident insurance policy does not mean, as its literal construction would require, a state of absolute helplessness which can result only from loss of reason, since as long as one is in full possession of his mental faculties, he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary, these courts, giving consideration to the object of the contract, hold that the ‘total disability’ contemplated by the agreement is inability to. do substantially all of the material acts necessary to- the prosecution of the insured’s business or occupation in substantially his customary and usual manner. If the prosecution of the business requires the insured to do several acts and perform several kinds of labor, and he is able to do and perform only one, he is as effectually disabled from performing his business as if he were unable to do anything required to be done, and while remaining in that condition he suffers loss of time in the business of his occupation. Nor do the provisions contemplate absolute physical inability to transact any kind of business pertaining 'to' one’s occupation, but it is sufficient if his’injuries are such that common care and prudence require him to desist from transacting any such business in order to effect a cure. And the fact that the insured may be able for an inappreciable period of time to perform his accustomed labor does not prevent a recovery, where he is actually totally disabled from following any avocation.”

The insurance world has evidently giveii long and deliberate consideration to the wording of provisions in policies of the character here discussed. We find from the jurisprudence of other states, much of which is cited by defendant’s counsel, that nearly all the companies employ language somewhat dissimilar, but generally about the same in substance. It is impossible to couch such provisions in language that will clearly meet every case. In each case interpretation necessarily must be resorted to in the light of all the facts. Each case has to be determined from its own peculiar facts and circumstances.

Applying the quoted statement from Ruling Case Law to the case at bar, plaintiff is entitled to recover. He is now unable to do “substantially all of the material acts necessary to the prosecution” of his business “in substantially his customary and usual manner.” His condition is such “that common care and prudence require him to desist from transacting any such business,” in order to not seriously aggravate his condition and shorten his life.

This ruling is supported by Manuel v. Metropolitan Life Insurance Company (La. App.) 139 So. 548; Phillips v. Mutual Life Insurance Company (La. App.) 155 So. 487.

In Crowe v. Equitable Life Assurance Company, 179 La. 444, 154 So. 52, the court had for consideration a policy with total disability clause therein very- much similar to that of the' present case. ■ The rule stated in Ruling' Case Law, which we have quoted supra, was approved, and Justice Rogers, as the court’s organ, said that this rule is supported by the weight of authority in England,, as well as in this country. The Manuel Case, supra, was referred to approvingly. .

Defendant’s alternative defense is without merit. All that is required under the-terms of the policy to entitle the insured *to-*definitive judgment for monthly payment» for the balance of his life is that the condition of disability existing at the time proof thereof is submitted to the insurer will presumably be permanent and continuous, preventing him from pursuing any occupation for remuneration or profit. The kidney disease, as said before, is incurable. No one can tell when it will cause total collapse of the-entire physical structure. It seems obvious *172that the condition of total disability will continue throughout the remainder of his life, most likely growing worse as time goes on.

The judgment appealed from is affirmed.