Hughes

In 1923 the appellee insurance company issued to the appellant Hughes a policy of-life insurance which provided for waiver of premiums, and for payment to him of monthly sums in the event that he became “totally and permanently disabled by bodily injury or disease, so' that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation. * * * ”

In 1932, and again in 1935, Hughes received serious injuries to his spine. Following the second injury, when his back was broken, he developed chronic multiple hypertrophic arthritis, which his doctor testified was continuing to get progressively worse. From 1935 to 1942 the company waived his premiums and paid him the monthly income stipulated in the policy, and then discontinued the payments and the premium waivers claiming that Hughes was not totally and permanently disabled within the meaning of the policy. Thereafter Hughes paid the premiums under protest, *543 and then brought this action in the Superior Court of Arizona, where Hughes resided, to recover the accumulated monthly income payments alleged to be past due, and…

I dissent.

The policy was issued to insure the appellant against his loss of earning capacity, in order that he might receive an income when “he ¿r, and will be permanently, continuously and wholly prevented * * * from performing any work for compensation, gain or profit, and from following any gainful occupation. (Italics supplied.)

And I agree that these terms of the policy should be given a reasonable rather than a literal construction, as applied to the facts in the case at bar.

Those terms are clear and unambiguous. But even under any paraphrasing, or construction most favorable to the insured, I do not see how he is entitled to 1 prevail upon the record in this case. I cannot read into the language of the policy an insurance against partial disability, or pain, or lessening of mere agility. And that is all the insured has shown, viewing the record in the light most favorable to him.

This is not a case where the insured has been forced to abandon his “gainful occupation” and compelled to prepare himself for some other means of earning a living, or of being forced to sell lead pencils, or earning the pittance of a bailiff, or the like. For that reason, the cases relied on…

180 F.2d 542 HUGHES v. MUTUAL LIFE INS. CO. OF NEW YORK. No. 12202. United States Court of Appeals Ninth Circuit. February 3, 1950. Laney & Laney, Grant Laney and Lynn M. Laney, Phoenix, Ariz., for appellant. Evans, Hull, Kitchel & Jenckes, Norman S. Hull, Phoenix, Ariz., for appellee. Before GOODRICH and POPE, Circuit Judges, and HALL, District Judge. POPE, Circuit Judge. 1 In 1923 the appellee insurance company issued to the appellant Hughes a policy of life insurance which provided for waiver of premiums, and for payment to him of monthly sums in the event that he became "totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation. * * *" 2 In 1932, and again in 1935, Hughes received serious injuries to his spine. Following the second injury, when his back was broken, he developed chronic multiple hypertrophic arthritis, which his doctor testified was continuing to get progressively worse. From 1935 to 1942 the company waived his premiums and paid him the monthly income stipulated in the…