The opinion
Dissenting Opinion by
Kenworthey, J.:
I would affirm the judgment.
The rules of construction are well settled. Policies of the sort here involved must receive a reasonable, not a literal construction.
Cooper v. Metropolitan Life Ins. Co.,
317 Pa. 405, 408 , 177 A. 43 . The insured is not “barred from recovery because he may be able to perform a few trivial and 'desultory acts or light work of a limited character and at irregular intervals.”
Pearlman v. Metropolitan Life Ins. Co.,
336 Pa. 444, 448 , 9 A. (2d) 432; “Occasional work for short periods by one generally disabled by impairment of mind or body does not as a matter of law negative total permanent disability.”
Lumbra v. United States
290 U. S. 551, 559 , 78 L. Ed. 492 , cited with approval in
Wuerfel v. Metropolitan Life Ins. Co.,
343 Pa. 291, 297 , 22 A. (2d) 747.
If the verdict had been for the defendant I would have no quarrel with it. If I had been a juror I should have had much difficulty with the main issue of fact. But I think the case was for the jury. Our province is to set aside the verdict of a jury only “when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing prin
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ciples of law ...... could determine in (plaintiff’s) favor the controlling issue involved.”
Virgilio v. Walker, 254
Pa. 241, 98 A. 815 .
I think the jury could have found from the evidence that whereas plaintiff was formerly in good health and actively engaged in the management of a farm and racing stable he is now, and has been during the period involved in this suit, an invalid who is compelled to delegate to others all the activities of his occupation except such of them as do not, under the aforementioned rules of construction, defeat his right to recover; that he is transformed, by his disabilities, from active manager to a mere owner of two going concerns*. The jury, by its verdict, has so found. I am unable to bring myself to the conclusion the finding is unreasonable.
The evidence must be viewed in the light most favorable to plaintiff. He has virtually lost the use of his left arm; the elbow joint was destroyed, he testified he had “only a small percentage of motion in the elbow,” that “the arm is half numb from the joint down,” that “the numbness is the terrible part,” and that it is continuous; he suffers pain in the elbow seventy-five per cent of the time; the inference is that because of excruciating pain he is unable to move the elbow, he testified “I moved it once and had to have it in a sling six weeks.” In 1985 he developed hypertrophic arthritis of the back resulting in limited and painful motion; he testified “my back has been lame and given me a lot of pain since the accident,” and that “if I bend over or try to do any work to speak of it makes the pain a lot worse and the lameness a lot worse”; he and his attending physician testified the condition is growing progressively worse. And in the latter part of 1936 or the early part of 1987 he developed “a lot of pain in (his) stomach” which still persists and which he testified interferes with his “being able to do anything” ; the condition has been diagnosed as a duodenal ulcer.
It .scarcely seems necessary to detail the things this
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plaintiff’s ailments prevent him from doing; any man who is burdened with the pathologies just described is an invalid. As the majority opinion points out, four medical experts “testified that plaintiff was not able to perform any of the duties of any occupation which he was ordinarily capable of performing.” One of them, when asked whether plaintiff Avas able to perform any of the duties of managing his racing stable, said: “Not if he Avas my patient.” The attending physician had advised
complete rest.
And, in this connection, what was said in
Lumbra v. United States,
supra, and quoted with approval in
Wuerfel v. Metropolitan Life Ins. Co.,
supra, is pertinent: “The mere fact that one has done some work after the lapse of his policy is not' of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.”
The evidence which, in the opinion of the majority, discloses, as a matter of law, that plaintiff “had the ability to perform a substantial and essential part of the duties incident” to a gainful occupation is that: (1) he entered and withdrew horses from races and collected their winnings; (2) he attended a number of races by automobile; (3) at times he drove his car; (4) he attended a horse sale in Harrisburg in 1940, and, (5) he attended the monthly meetings of the board of directors of a bank.
As to the 'handling of entries of horses in races plaintiff testified: “Q. You been in the discussions- concerning the entry of them? A. Yes. My son done the most of it in the last two years since I got 'hurt, since he got old enough to do it. I think he entered them all this year. (1940) I entered some last year, but gradually turned it over to him.” The entries were made by mail and the winnings paid by check.
Plaintiff was asked whether, when he attended races, he supervised the horses. He said: “I didn’t supervise hardly anything. I went in the grandstand and watched my horses try to win.”
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Although, he admitted he drove his car “at times,” there was no indication how often or to what extent and it is a fair inference he was unable to drive any great distance because he said he did not drive to any of the races he attended.
There are rare individuals who conceivably could follow a gainful occupation though bed-ridden and in constant pain. But I am fearful that the decision of the majority makes it virtually impossible for the proprietor of an enterprise, as distinguished from an employee, to get total disability benefits under policies of the kind here involved without selling or giving away or losing to his creditors the enterprise. That this plaintiff could not follow any gainful occupation if he were compelled to work for someone else seems apparent, yet, I concede, that is not a conclusive test. But the policies are intended to furnish security against loss of earning power, not income. And I think much too much emphasis has been placed on the fact that the farm and racing stable continued, after plaintiff’s disability, to operate on about the -same scale as before. The question is not whether they operated but whether plaintiff has been and is able to make any useful contribution to their operation. I think that is what is meant by performing “any work for compensation, gain or profit” or following “any gainful occupation.” The jury apparently believed the complete operation had been, since plaintiff’s disability, transferred ,to others and that his desultory activities were inconsequential. I am not so sure they were not that I can declare it as a matter of law.
The motion for a new trial is based on the refusal of appellant’s sixth point for charge. In my opinion its form assumed a literal interpretation of the policies and was therefore too narrow. The law was correctly stated in the charge. I would therefore also overrule the motion for new trial.
Baldbige, J., joins in this dissent.