1. Insurance - disability policy - construction - "any gainful occupation for which he is reasonably fitted" .
Under disability policy insuring against complete loss of business time due to inability to engage in regular occupation or any gainful occupation for which insured is reasonably fitted, recovery depended on showing both that insured was unable to follow regular occupation and unable to follow any other occupation for which he was reasonably fitted.
2. Insurance - same - same - same - erroneous instruction.
Instruction in action on policy insuring against disability defined as inability to engage in regular occupation or any gainful occupation for which insured was reasonably fitted, that insured was disabled if he was prevented from performing substantial acts required of him in his business, was erroneous for failure also to require finding that insured was disabled from any other occupation for which he was reasonably fitted.
3. Insurance - same - evidence - written statements by doctors who have died since statements were given, admissible.
Written statements by doctors, who had died since statements were given, were admissible in action on disability policy, wherein insurer claimed that insured had failed to present proper claim of disability, and insured in answer offered such statements, which had been attached to claim, as proof that notice and claims were submitted.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Smith County; HOMER CURRIE, Judge.
Suit by plaintiff-insured, Derwood E. Wooley, against the defendant-insurer, Prudence Life Insurance Company, based on a health and accident insurance policy which provided for disability income while the insured was totally disabled. The principal issue on the appeal is whether, under the provisions of the policy, the insured was totally disabled. From a judgment for plaintiff, defendant appealed. Reversed and remanded.
Watkins, Pyle, Edwards & Ludlam, Robert H. Weaver, Jackson, for appellant.
I. Was the insured totally disabled if he was not physically capable of performing the substantial acts of his regular occupation of broiler farming but was physically capable of performing the substantial acts of other comparable occupations for which he was reasonably fitted, under the provisions of a policy in which "total disability" was defined as "the inability . . . to engage in his regular occupation or in any gainful occupation for which he is reasonably fitted by education, training or experience" ? Brotherhood of Railroad Trainmen v. Nelson, 166 Miss. 671, 147 So. 661, 148 So. 179; Cooper v. Metropolitan Life Insurance Co., 317 Pa. 405, 177 Atl. 43; Life & Casualty Co. of Tennessee v. Jones, 112 Miss. 506, 73 So. 566; McKillips v. Railway Mail Assn. (Wash), 116 Pac.2d 330; Mutual Life Insurance Co. of New York v. Baker, 197 Miss. 438, 19 So. 2d 739; Mutual Life Insurance Co. v. Bryant, 296 Ky. 815, 177 S.W.2d 588, 153 A.L.R. 422; New York Life Insurance Co. v. McGehee, 193 Miss. 549, 10 So. 2d 454; Shuman v. National Casualty Co., 80 N.J. Super. 310, 193 Atl. 2d 513; 29 A Am. Jur., Insurance, Secs. 1516, 1518 p. 620.
II. The verdict of the jury was against the weight of the evidence.
III. Letter reports of deceased physicians are inadmissible as evidence under the hearsay rule. Wigmore, Evidence (3d ed.), Sec. 1460.
L. D. Pittman, Raleigh; O. B. Triplett, Jr., Forest, for appellee.
I. The insured was totally disabled if he was physically prevented, by bodily disease, from doing the substantial acts required of him in his business and he did not have to prove that he had sustained "complete loss of business time due to the inability of the insured to engage in his regular occupation or in any gainful occupation for which he was reasonably fitted by education, training, or experience" . Columbian Mutual Life Insurance Co. v. Craft, 186 Miss. 234, 185 So. 225; Lipnick v. New York Life Insurance Co., 211 Miss. 833, 52 So. 2d 916; Mutual Benefit Health & Accident Assn. v. Mathis, 169 Miss. 187, 142 So. ...