New York Life Insurance Co. v. Howard

Court of Appeals of Georgia

New York Life Insurance Co. v. Howard

12 S.E.2d 394, 63 Ga. App. 865, 1940 Ga. App. LEXIS 571

CourtCourt of Appeals of Georgia

DecidedDecember 5, 1940

Docket28443.

StatusPublished

Cited by1 cases

This text of 12 S.E.2d 394 (New York Life Insurance Co. v. Howard) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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New York Life Insurance Co. v. Howard, 12 S.E.2d 394, 63 Ga. App. 865, 1940 Ga. App. LEXIS 571 (Ga. Ct. App. 1940).

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Felton, J.

(After stating the foregoing facts.) binder the rulings of the Supreme Court in Cato v. Ætna Life Insurance Co., 164 Ga. 392 (138 S. E. 787), and Prudential Insurance Co. v. South, 179 Ga. 653 (177 S. E. 499, 98 A. L. R. 781), the evidence on behalf of the insured in this case did not authorize the finding that he was permanently disabled. ' It does not appear from his evidence in sufficient detail what his ordinary and customary duties were before his alleged disability began. It does appear that he desisted from certain physical duties, but these did not constitute the substantial part of his total duties. Not only did the insured not desist from attending to his farm operations, or *869 from performing certain duties with reference to his other businesses, but he undertook other duties, service in the General Assembly and the administration of a brother’s estate. It nowhere ap-. pears from the record that there was any diminution in the earnings of the insured. In order for a finding of total and permanent disability to stand there must be evidence to authorize the finding that, by reason of an actual disability, the insured has desisted from the performance of the greater part, a substantial part, of his customary duties. Under the evidence the jury could not ascertain whether the insured had refrained from performing one half, one fourth, three fourths, or eight tenths of his customary duties. The cases cited by the defendant in error, such as New York Life Insurance Co. v. Thompson, 50 Ga. App. 413 (178 S. E. 389), and New York Life Insurance Co. v. Bradford, 57 Ga. App. 657 (196 S. E. 92), do not apply to the circumstances of this case. In these cases the evidence was sufficient to show that the insureds, in their particular circumstances, were totally and permanently disabled. The principle announced in Federal Life Insurance Co. v. Hurst, 43 Ga. App. 840 (3) (160 S. E. 533) is more nearly applicable to the facts of this case. We do not say that the evidence in this case demands a finding against total and permanent disability. It simply does not show sufficient facts to authorize a finding as to what the extent of the disability was. The court erred in overruling the motion for new trial containing the general grounds.

Judgment reversed.

MacIntyre, J., concurs. Button, J., dissents. Stephens, P. J., disqualified.

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Felton, J.

(After stating the foregoing facts.) binder the rulings of the Supreme Court in Cato v. Ætna Life Insurance Co., 164 Ga. 392 (138 S. E. 787), and Prudential Insurance Co. v. South, 179 Ga. 653 (177 S. E. 499, 98 A. L. R. 781), the evidence on behalf of the insured in this case did not authorize the finding that he was permanently disabled. ' It does not appear from his evidence in sufficient detail what his ordinary and customary duties were before his alleged disability began. It does appear that he desisted from certain physical duties, but these did not constitute the substantial part of his total duties. Not only did the insured not desist from attending to his farm operations, or *869 from performing certain duties with reference to his other businesses, but he undertook other duties, service in the General Assembly and the administration of a brother’s estate. It nowhere ap-. pears from the record that there was any diminution in the earnings of the insured. In order for a finding of total and permanent disability to stand there must be evidence to authorize the finding that, by reason of an actual disability, the insured has desisted from the performance of the greater part, a substantial part, of his customary duties. Under the evidence the jury could not ascertain whether the insured had refrained from performing one half, one fourth, three fourths, or eight tenths of his customary duties. The cases cited by the defendant in error, such as New York Life Insurance Co. v. Thompson, 50 Ga. App. 413 (178 S. E. 389), and New York Life Insurance Co. v. Bradford, 57 Ga. App. 657 (196 S. E. 92), do not apply to the circumstances of this case. In these cases the evidence was sufficient to show that the insureds, in their particular circumstances, were totally and permanently disabled. The principle announced in Federal Life Insurance Co. v. Hurst, 43 Ga. App. 840 (3) (160 S. E. 533) is more nearly applicable to the facts of this case. We do not say that the evidence in this case demands a finding against total and permanent disability. It simply does not show sufficient facts to authorize a finding as to what the extent of the disability was. The court erred in overruling the motion for new trial containing the general grounds.

Judgment reversed.

MacIntyre, J., concurs. Button, J., dissents. Stephens, P. J., disqualified.

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12 S.E.2d 394, 63 Ga. App. 865, 1940 Ga. App. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-life-insurance-co-v-howard-gactapp-1940.

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