Pan-American Life Insurance v. Kirkpatrick

183 S.E. 88, 52 Ga. App. 344, 1935 Ga. App. LEXIS 166

• Court: Court of Appeals of Georgia
• Decided: December 24, 1935
• Docket: 25012
• Status: Published

Opinion

Jenkins, P. J.

1. A group insurance policy, issued to a benefit association composed of employees of a railroad company, provided for payment of total disability benefits to any employee on “due proof that he has, while an employee of the employer during the continuance of this contract, . . become wholly disabled by bodily injury or disease, and will be permanently, continuously, and wholly prevented from engaging in any occupation or employment for wage or profit.” In a suit on the policy by a former employee, the undisputed proof showed that the plaintiff, although suffering from the effects of a previous hernia, was not prevented from performing his work as a machinist’s helper or roundhouse foreman, which required little physical labor; but that he quit his employment with the company when it informed him that, on account of certain “rules of seniority,” it intended to displace him with another man, offering him the choice of two other jobs. The plaintiff not being physically disabled from performing what had been the duties of his employment during the entire period covered by the policy and at the time when he ceased to be an employee, and any subsequent total disability having arisen after he had ceased to be such an employee, he was not entitled to recover. Prudential Insurance Co. v. South, 179 Ga. 653, 658-660 (177 S. E. 499); Cato v. Ætna Life Ins. Co., 164 Ga. 392 (138 S. E. 787); Blackman v. Travelers Insurance Co., 49 Ga. App. 137 (174 S. E. 384); Equitable Life Ins. Co. v. Garrett, 25 Ala. App. 446 (148 So. 338); Peyton v. Metropolitan Life Insurance Co. (La.), 148 So. 721. A verdict for the defendant being demanded, by the evidence, it was error to refuse a new trial.

2. The special grounds of the motion for new trial need not be dealt with, since the ruling stated above is controlling. .

Judgment reversed.

Stephens and Sutton, JJ., concur. Bryan, Middlebrooks & Carter, John A. Dunaway, Yantis C. Mitchell, for plaintiff in error. Winfield P. Jones, Louis H. Poster, Carroll P. Jones, contra.