In examining the evidence there are two rules that must be kept
1. That the burden of proof is upon the plaintiff to prove the
issues presented to the jury.
2. The evidence must be considered in its aspect most favorable
to the party against whom the motion is made with every fair and
reasonable inference which the evidence justifies. Mandro v.
Vibbert, 4 Cir., 170 F.2d 540, at page 541.
The evidence when taken in its best light for the plaintiff
disclosed the following pertinent facts: That Albert B. Hodges
was a salesman employed by Calvert Distilleries Corporation from
January until about November 15, 1950. From about May 1950 until
November 3, 1950 Hodges lost about 10 pounds in weight and
complained from time to time of pain in his left arm and
shoulder. On November 3, 1950 he was hospitalized for about three
days, and during the first two days of the hospitalization he
complained of paralysis in his legs. Within two weeks after his
release from the hospital he went to the State of Florida where
he was employed as a paint salesman. About February 14, 1951 he
returned to Champaign, Illinois, and was employed as an
automobile salesman, and sometimes worked as a bartender in the
evenings. On March 20, 1951 he was taken to the hospital and
death followed at about 3 o'clock the following morning. From the
time he became ill in May 1950 he appeared to have a change in
personality. He became at times morose and depressed; formerly he
had been cheerful and alert. His walk also changed to sluggish
and slow movement. The medical testimony based upon a
hypothetical question was that continuing to work after November
1950 was deleterious to his health; that the symptoms of illness
were present continuously from May 1950 to his death; that he had
some form of brain damage. His death was attributed to acute
A reasonable inference from the evidence is that Hodges became
ill while in the employ of the Distilleries Corporation and that
continuing to engage in any occupation for compensation was
deleterious to his health. We are, therefore, confronted with the
legal proposition as to whether or not Hodges was totally
disabled when he did work, and that any work was deleterious or
harmful to his health.
The defendant maintains that the Illinois law bars recovery on
the policy if the insured worked at any occupation for
compensation; that it is of no avail that he was unable to work
or the employment was deleterious to his health. The defendant
relies principally upon the case of Lincoln v. Prudential Ins.
Co., 345 Ill. App. 547, 104 N.E.2d 347. The court in that case,
345 Ill.App. at page 552, 104 N.E.2d at pages 349, 350,
particularly points out that there was no evidence in the record
that the insured was not able to perform any work during the
period from 1942 to 1945, which was the crucial time upon which
the case turned. In the instant case there is the additional
medical proof that the insured in continuing to work was injuring
his health, or in other words endangering his life. The court is
of the opinion that the Lincoln case is not decisive of the
instant case. No case has been cited by the plaintiff or
defendant in their briefs, nor has the court been able to find a
case in Illinois decisive of the problem.
The fair and equitable interpretation of the clause in the
policy is that working by the insured if injurious to his health
should not bar recovery under the policy. It has been held in
Illinois that the insured need not be helpless or confined to his
bed to be totally disabled. Davis v. Midland Casualty Co.,
190 Ill. App.? 338. In the instant case the fact that the deceased
attempted to work and was not financially able to remain idle
should not penalize his beneficiary. Equitable Life Assur. Soc.
of United States v. Watts, 230 Ala. 297, 160 So. 713. The policy
uses the phrase "so as to be prevented." "Prevent" according to
Webster's New International Dictionary is defined as to hinder,
impede, keep (from), frustrate,
stop, check, thwart, to keep from happening or existing. The word
prevented must be given the meaning most favorable to the
beneficiary.*fn1 Thus, prevented must be construed to mean
impeded or hindered the insured from engaging in any occupation
for compensation. Booth v. United States Fidelity & Guaranty Co.,
130 A. 131, 3 N.J. Misc. 735. Even if the insured had no
knowledge of the condition of his health and continued to work,
if working was injurious to his health he certainly was impeded
or hindered from working.
Turning to the cases other than in Illinois, in the majority of
the jurisdictions such a clause in the policy has been construed
to mean that the insured is totally and permanently disabled so
as to be prevented from doing any work for compensation when such
work would be injurious to his health or endanger his life.
Equitable Life Assur. Soc. of United States v. Watts, 230 Ala. 297,
160 So. 713; Lipnick v. New York Life Ins. Co., 211 Misc. 833,
52 So.2d 916; Wheeler v. Equitable Life Assur. Soc.,
294 Mich. 520, 293 N.W. 735; Mutual Benefit Health & Accident Ass'n
v. Mathis, 169 Miss. 187, 142 So. 494; Metropolitan Life Ins. Co.
v. Bovello, 56 App.D.C. 275, 12 F.2d 810. See Metropolitan Life
Ins. Co. v. Foster, 5 Cir., 67 F.2d 264; Horn v. Travelers Ins.
Co., D.C., 64 F. Supp. 59; Massachusetts Protective Ass'n v.
Lewis, 3 Cir., 72 F.2d 952, 45 C.J.S., Insurance, § 939, page
1116; 149 A.L.R. 68 et seq.
In the case of Hamm v. Metropolitan Life Ins. Co., 237 Mo.App.
12, 166 S.W.2d 324, 331, the Missouri court had before it a
somewhat similar clause in a policy. On the Motion for Rehearing
"deleterious to his health" was interpreted to be the equivalent
to "grave risk and danger to his health or his life." However, in
that case the medical testimony did not cover the entire period
in question and recovery was denied. But at page 331 of 166
S.W.2d the court said: