860 !ETNA LIFE INSURANCE CO. V. MARTIN. [192 /ETNA:LIFE INSURANCE COMPANY V: MARTIN. . 4-4306
Opinion delivered June 15, 1936. I. INSURANCE—TOTAL AND PERMANENT DISABILITY.—Total and permanent disability is such as renders one unable to perform the substantial and material acts of his vocation in the usual and
ARK.] VETN'A LIFE INSURANCE CO. V. MARTIN. 861 customary way; and whether one, suffering from diabetes is. able to perform substantially- all :the , material duties of his, vocation is a question of fact for ascei : tainment by a jury, 2. APPEAL* AND . ERROlt—is iECES§ITY FOR MOTION FOR NEW TRIAL.— . 'Where appellee in • an action at 'law brings a cross-appeal, errors assigned in testimony 'cannot be reviewed where there -was no :motion for new trial, since ;that is the only Method of preserving such . errors for review.. • Appeal from Saline Circuit Court ; Henry B. Means, Judge ; affirmed.. Otifens & •i'h. nnctii; for appellant: J. B...Mil . hap and 0. T. Cotham, for.appellee. JonNs0x, • 0. J...In.192.6,. appellant, ..ZEtna Life Insurance Company, issued to appellee, A. V.'Martin, its policy . of life and disability insuranCe whereby appellee was indemnified against death in .the sum of $25,000 and against . total and_ permanent disability in . the sum of $250 per,month during disability ; indemnity for total disAbility. was, conditioned, however, upon accrual prior to the insured's attaining, al years, of age. . • In 1935, . appellee instituted this suit against -appellant in- the Saline Circuit Court and therein alleged that he became totally and permanently disabled within .the purview of the contract -of indemnity' on•or about January 15,, 1930, , and. prior to attaining 60, years of .age . and at a . time, when. the contract -was in full force and .effect. The sprayer, was .for $2,000 as principal, attorney's fees and costs. , : .; . , By answer, appellant admitted the • execution. of the •contract and . ..that it was .in force:and effect son. January 15, 1930, but denied that appellee became 'totally. and permanently disabled.on January 15, 1930, or that, he became totally and permanently: disabled prior to attaining 60 years of age. • Upon trial to .4 jury,,a verdict and consequent judg- ment was entered in favor of appellee for $500 indemnity. By this appeal appellant seeks reversal, and by crosS-appeal appellee seeks modification because of insufficient relief. . • . • .The only issue presented on direct appeal is stated by appellant to be " . whether or .not there was sufficient
862 AE TNA LIFE INSURANCE' CO. v. MARTIN. [192 evidence to submit . to the jury an the question •of the al-' leged total and permanent disability Of appellee." Consideration of the contention urged makes it necessary to review the testimony. adduced at the trial. That upon behalf of appellee was to the effect that appellee was first advised by physicians, in 1.929,.that he was suffering from diabetes, and was thereupon put upon a rigid diet and directed to take insulin treatments:daily. These directions have been consistently followed by appellee up: to the time of the trial. Appellee . was also advised- by his attending physician that he should not undertake continuation of his previous activities as a contractor and that his' phYsical effoit should be restricted to mere supervision and' direc- tion. Prior to 1930, appellee 1,aa -performed, not, only supervision and direction ef his contracting work, but had • Made a' regular hand in 'the ekecution of hiS bitsiness, • working . frotn 12' to 15 hatirs • . dnily; subsequent taj his contracting diabetes he has 'been unable ta 'give but' little 'attention to* his bUSinesS. That aPpellee'S bnsiness,.dñe to his neglect, under 'the' circumStaiices,' bad 'greatly 'depreciated . in value, etc. Appellee attained- hiS : 60th birthday 'June 5, 1930,• and his' disability accrued prior to that -time and has • continued up to the trial.. • ' • The testimony in behalf of appellant was to the effeCt that appellee had -prosecuted his contracting' . bisineSs with, all the diligence and vigor subsequentJa1929 and '1930 • that he . had emPloyed prier therete, and a maSs of testimony was adduced so indicating. It was also sh own 'that appellee hactengaged in the banking . business •, subsequent to the time he claimed to have beCame totally and permanently disabled. AlSo, thata per. sOn suffering from diabetes 'might pursue his vocation without • serious impairment under normal cireumstances. • The above is' a very brief summation of the testimony adduced by , the parties, but will suffice to show Ihe general trend of the 'positions taken by them. • •- • The law which obtains in this State:in reference to total and permanent disability under contracts' af . indemnity similar to the one under review has been 'repeatedly stated by ns to be :. disability exists when the inSui.ed is able to accomplish only . same of, the duties
ARR.] ;ETNA LIFE JI■tSI.TRANCE CO. v. MARTESI. 863. essential to the • prosecution .of his business ; or •Whenle: i8 able to dO only oceasional . aCts or is unable to do atV, substantial portion of tbe Work connected With' his voca2 tion, ;this 'is' sufficient . to establish total . and •permanent diSability. 2Etna' Life ins. Person,:188 Ark. .864,. 67 S..W.!(2d), 1.007,•and cases therein.cited..: *. 'The rule Stated . anOther`WaY is.' that total 'and per-, manent . disabilitY . is "suCh • aS' renders .the insured unabld to perform, the substantial and material ac . ts-:of his vocation in the usual .and customary, way.: . Travelers, Protec7. tive. Ass!n v.,'Stephens,185. Ark: .. 660, •49 S. W. (2d) '36,4i, and .cases therein cited ... , . .; . 'The ,uncontradicted testimony in this .record reflects that in 1929, at a time when the contract . ,of indemnity!. . was in full force .and effect . and at a time prior to appel-lee's attaining. 60, years O ' f age, he contracted diabetes which is adihittealy ..dangerous and : incurable disease, and : maY, be held ins check only:by nse. of insulin, the seryance of strict,diet, and refraining from over-exertion..; . This inquiry, therefore, narrows to. a deterininatibn, of whether:we , shall : declare as: a matter of law that oile suffering froma :pronounced case of diabetes is not totally and. permanently: disabled.. The victim, of diabetes holds the:key to: his continued life. If he follows diet. instrug7 tions • consistently, . if! he Submits his persoh to :insulin . inoculation as may be.:necessary or. required, ;and if .he refrains from over:exertion he may, live out, his life: e.x. pectancy'; :but deviation from these requireinents.:means immediate death. Indeed : , a reasonably prudent person . couldhardIy be found at fault by strictly observing ndces-sary. requirements which have the purpose • and: effect .of prolonging his. life, and, when , observance of, necesary requirements results in , cessation..of performance : of. the material duties of his vecation, under:the. law,. it:means, total and permanent disability. . In recent cases and under analogous circumstances we have declined to declare as a 'Matter of laWAliat eei!= tain physical defects were partial and not total and permanent. In "Etna Life Insurance Company v. Saliders, ante p. 590, 93 S. W. (2d) 141, we refused to declare that an insured was required to undergo a minor operation to'
864 ;ETNA LIFE INSURANCE CO. V. MARTIN. [192 relieve himself from total and permanent disability. In Holmes v. Metropolitan Life Ins. Co., 187 Ark. 388, 60 S.• W. (2d) 557, we held that the loss of one eYe when viewed in the light .of attending facts and circumstances. presented a jury question of. total and permanent -disability. See, also,-Bu s . iness Men's Assurance'Co. V. Sel-vidge; 187 Ark. 1040, 63 S. W. (2d). 640 ;. New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. -(2d) 520. . Whether the loss of a leg . under attendant facts and' circumstances constituted total and permanent disability was •held to be. a jury question in Prudential Insurance. Co. v. Lane, 189 Ark. 7, 70 S. W. : (2d) 43. . See, also, Jefferson Standard Lifelns. : Co. v Slanghter; 190 Ark. 402, 79 S. W. (2d) '58. Even s6 in the instant Case, it is arid should be a question of fact fOr' ascertainment by - the tryers of fact, whether One suffering from ‘ 'diabetes is able to perform substantially all the material duties of his vOcation. Bat' appellant urges that the'Person case;prct,' is.'authority opposing this view. We do not so consider it. Person was' suffering from an arrested case of tuberculosis. Its effect, was, under the attendant facts and circumstances, to Partially disable, only. In the' instant 'case, however, such is not the undisputed facts. . We'are of the opinion and so hold thatunder all : the facts and circumstances of this record it was a question of fact for the jurY's• consideration whether appellee 'was totally and permanently' disabled prior to June 5, 1930, and that their finding that he was is supported by substantial testimony. On cross-appeal but- little 'need 'be said. Appellee failed to file a motion for a new trial, which is 'the only method- of 'preserving error for reyiew arising from the testimony in law actions. Stacy v. Edwards, 178 Ark.' 911, 12 S. W. (2d) 901. . No error appearing, the judgment is affirmed on appeal and cross-appeal.
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