Before SPARKS and KERNER, Circuit Judges, and BRIGGLE, District Judge.
In a suit upon an accident insurance policy the insurance company appeals from a $4,260.68 judgment*fn1 in insured's favor. The judgment is predicated upon a finding by the trial court of permanent and total disability of insured, resulting from an accident.
The insurance company had issued the policy May 9, 1935, to James Morgan, "by occupation an Office Clerk - Office Duties Only." The policy provided for weekly payments of $20 for permanent and total disability arising from accident, in these terms:
"Or, if such injuries, directly and independently of all other causes, shall, within twenty days from the date of accident, wholly and continuously disable the Insured and prevent him from perfoming any and every duty pertaining to his occupation, the Company will pay weekly indemnity at the rate hereinbefore specified for the period of such continuous total disability, but not exceeding fifty-two consecutive weeks. After the payment of weekly indemnity for fifty-two weeks as aforesaid the Company will continue the payment of weekly indemnity of the same amount thereafter so long as the Insured shall be wholly and continuously disabled by such bodily injuries from engaging in any occupation or employment for wage or profit."
Two issues are presented:
(1) Has insured been continuously, and permanently and totally disabled by virtue of an accident in the course of his duties as office clerk? The question of continuity turns upon insured's return to the Company office intermittently for short periods of time from December 28, 1942 to August 1, 1943.
(2) Did the trial court err in granting disability recovery to the date of judgment, instead of to the date of commencement of suit?
Insured was employed by a dairy company, as a branch office manager. As such, his duties consisted of making reports, doing the banking, calling on wholesale customers, soliciting retail customers, going out with the deivers and checking their routes and checking their money and books, hiring employees, going to the post office, and the like.
On September 14, 1942, Morgan, while checking milk in storage, lifted a case of milk weighing about seventy pounds, four feet off the floor, and while doing so his foot slipped on the wet floor and he wrenched his back. This back injury is the source of the alleged permanent and total disability. Morgan was thirty-three years old at the time of the accident.
Morgan consulted a local doctor two days after the accident and a course of rest and heat treatment was prescribed. He did not return to the company's office, after the accident, until December 28, 1942. Thereafter, until August 1, 1943, he went to the office two or three times a week and stayed from ten minutes to an hour. While there he performed some duties of an advisory nature, and it is upon this service that the insurance company contends that there can be no holding of total (and continuous ) disability, but rather partial disability, which would preclude recovery under the insurance contract.
A co-employee, hired by Morgan in 1943, testified to substantially the same facts as did Morgan, as to the work performed by Morgan in the early part of 1943.
Morgan was not replaced as office manager until August, 1943. Since leaving the dairy plant in August, 1943, he has done no work whatsoever.
In November and December, 1942, Morgan was in the Battle Creek Sanitarium. On August 4, 1943 he went to the Barnes Hospital in St. Louis, where he remained for a few days. He returned there in October, when a laminectomy operation was ferformed to remove the protruding part of the disc between the fifth lumbar and first sacral vertebrae. He was discharged from the hospital November 5. The operation was evidently a failure and ...