Myers v. Travelers Ins. Co.

236 N.E.2d 209, 14 Ohio St. 2d 76, 43 Ohio Op. 2d 131, 1968 Ohio LEXIS 421

• Court: Ohio Supreme Court
• Decided: April 17, 1968
• Docket: No. 40708
• Status: Published

Opinions

Zimmerman, J.

By the terms of the group policy plaintiff may recover thereunder only if “he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit * * V’

Section 3923.011, Revised Code, contains the following statement and definition:

“As used in any policy of sickness and accident insurance delivered, issued for delivery, or used in this state, unless otherwise provided in the policy or in an indorsement thereon or in a rider attached thereto:

“ (A)‘Total disability’ means inability to perform the duties of any gainful occupation for which the insured is reasonably fitted by training, experience, and accomplishment.”

In his deposition plaintiff admitted that he was engaged as a traveling salesman by another employer but at considerably reduced remuneration from that which he had formerly received, and that he had been so regularly engaged for a period of four months preceding the taking of the deposition. He also stated that he had requested different and lighter work from his former employer (the one which carried the group insurance policy) but was informed that there was no such work available. He also stated that his doctor had advised him that he could engage in light work which required no strenuous physical exertion.

In the case of Stuhlbarg v. Metropolitan Life Ins. Co., 143 Ohio St. 390, 55 N. E. 2d 640, this court held in the fourth paragraph of the syllabus:

“Under the terms of a disability insurance policy providing compensation in case of total disability, the test of the insured’s ability to perform any labor for compensation is not limited strictly to the occupation or vocation in which the insured may be engaged at the time his disability accrued, but extends to any comparable employment for which the insured is fitted by education, experience and physical condition.”

And, in 45 Corpus Juris Secundum 1174, Section 980, it is stated:

“ * * * Disability is total if insured cannot perform any substantial part of the labor required in following some remunerative occupation.”

Another approved definition is that one is totally disabled when he cannot earn wages or remuneration in some occupation or gainful pursuit within his capacity and which reasonably can be demanded of him.

All the court properly had before it on the summary judgment hearing were the pleadings and plaintiff’s deposition. Section 2311.041 (128 Ohio Laws 63), pertaining to summary judgments and in effect when this action was filed, made no provision for the introduction of testimony. For the text of Section 2311.041, Eevised Code, see Priester v. State Foundry Co., 172 Ohio St. 28, 30, 173 N. E. 2d 136.

Plaintiff’s own testimony in his deposition refuted his claim of “wholly disabled,” and the court was thereby left no alternative but to reject the total disability claim.

Upon the pleadings and plaintiff’s deposition, under the terms of the group policy and the definition of “total disability,” as contained in Section 3923.011, Eevised Code, and under the applicable law, no material issue of fact was presented, and the court properly sustained defendant’s motion for summary judgment. It may be that plaintiff could have produced by affidavit, deposition or otherwise material which would have raised an issue of fact and would have entitled him to a formal trial, but he did not, and his failure to do so warranted the summary judgment against him.

The judgment of the Court of Appeals is affirmed. ..

Judgment affirmed.

Taut, C. J., Matthias, O’Neill, Schneider and BrowN, JJ., concur. Herbert, J., dissents.