65 Ind. App. 109 | Ind. Ct. App. | 1917
On July 12, 1913, appellee began this suit against appellant on a health and accident insurance policy. The issues were formed by a complaint in one paragraph answered by a general denial. A trial by the court resulted in a judgment for appellee in the sum of $240, from which this appeal was taken. Appellant has assigned as error the overruling of its
The complaint, in substance, charges that on September 7, 1910, appellee applied for and obtained a policy in appellant company, whereby it promised, in the event of bodily injury resulting through external, violent and accidental means, to pay appellee forty dollars per month, so long as he should be prevented from performing his ordinary business by reason of such injuries; that he complied with all the provisions of the policy so issued to him, and on November 17, 1912, while the policy was in force, he received a personal injury which was caused by the slipping of a ladder on which he was working, whereby he was thrown ten feet to and upon a cement floor, causing an injury to his back, side and spine; that by reason of such injuries he was prevented from following his occupation or attending to any work or business continuously from December 27, 1912, and still is totally disabled and prevented from performing any duty pertaining to any business or occupation; that due proof of his disability for the period of six months was furnished appellant and payment was refused. The policy is made a part of the complaint as “Exhibit A’- and it is averred that there is due thereon the sum of $280 for which judgment is demanded.
The finding of facts follows the averments of the complaint and, omitting uncontroverted statements, is in substance as follows: On September 7, 1910, appellee was an able-bodied man in good health, and in sound physical condition and on that day appellant issued to him a health and accident policy, the substance of which, as far as material here, is as follows:
The policy to be in force until 12 o’clock noon of October 1, 1910, “and for such further periods as the premium paid will maintain this policy in force. * * *
*113 “Total Accident Disability.
“A. At the rate of forty dollars per month, for the period, not exceeding twenty-four consecutive months, that the assured, is totally and continuously from the date of accident disabled and prevented from performing every duty pertaining to any business or occupation, as a necessary result; independent of all other causes, of bodily injuries effected through external, violent and accidental means. * * *
“Illness Indemnity.
“E. At the rate of forty dollars per month for the number of consecutive days (deducting the first week unless continuing twenty-eight consecutive days) that the assured is strictly and continuously confined within the house and therein regularly visited and treated by a legally qualified physician and necessarily totally disabled, by reason of illness having its cause and beginning after this policy has been maintained in continuous force for thirty days; and if, during convalescence following said house confinement, the assured shall be necessarily and continuously disabled from performing every duty pertaining to any business or occupation, and require and receive the regular attendance of such physician, the company will pay him indemnity at one-half of said rate for the period of such convalescence not exceeding four weeks. * * *
“Miscellaneous Provisions. * * *
“2. In the event of disability, due to either accident or illness, wholly or in part caused by or resulting directly or indirectly in or complicated with tuberculosis, rheumatism, paralysis, apoplexy, orchitis, neuritis, locomotor ataxia, lumbago, lame back, strains, sciatica, vaccination, Bright’s disease, cancer, dementia, hernia, insanity, or in the event of any accidental injury otherwise covered by this policy resulting in hernia, terminating fatally or otherwise, then in all such cases referred to in this paragraph, the only liability of the com-, pany shall be indemnity for a period of disability*114 not exceeding four weeks in any one policy year, anything herein to the contrary notwithstanding. * * *
“6. The company may cancel this policy at any time, without prejudice to the rights of the assured as to any claim then pending, by written notice of cancellation served upon the assured or mailed to the assured at the address herein given, together with the company’s check for the unearned portion, if any, of the premium paid.
“7. Indemnity will not accrue hereunder in excess of the time the assured is, by reason of injury or illness, under the professional care and regular attendance of a legally qualified physician or surgeon. If the assured is disabled by injury or illness for more than thirty days, he or his relatives shall as a condition precedent to recovery hereunder, furnish the company every thirty days with a report in writing from his attending physician or surgeon, fully stating the condition of the assured and the probable duration of the disability. * * *
“9. This policy with the schedule of warranties endorsed hereon, contains the entire contract between the parties hereto, and no agent has authority to change it or waive any of the provisions.
“2. That on tide reverse side of said policy, in written and printed matter, under the head and title of ‘Schedule of warranties,’ was endorsed the following language:
“Schedule of Warranties.
“By accepting this policy the assured agrees that each statement in this schedule is material, and warrants each to be true. * * *
“I agree to pay a monthly premium of One and 20/100 Dollars in advance without notice or demand.”
The court also found that from the issuance of said policy appellee promptly paid all dues and premiums on same up to and including June 7, 1913; that on November 17, 1912, while working at his usual employment,
On the foregoing finding of facts the court stated its conclusions of law as follows: “(1) The law is with appellee and he is entitled to recover $240. (2) That the notice of injury stated in the findings was accepted by appellant as notice under the terms of the policy and was furnished within reasonable time after receiving the injury within the meaning of the law applicable thereto. (3) That the provisions of sub-division two, under the heading ‘Miscellaneous Provisions,’” in said policy, does not preclude the plaintiff’s right to recover on said policy, nor limit his right to recover to a period of four (4) weeks in any one policy year. (4) That the plaintiff is entitled to recover his costs in this action. (5) That the plaintiff’s right to recover on account of the injury in suit, for disability suffered after the time of the commencement of this action, is in no way an issue in this cause, and is not in any way litigated, determined or adjudicated, nor the rights of either party affected or prejudiced.
“This, the 11th day of June, 1914.
“Chas. K. Bagot,
“Judge of the Madison Circuit Court.”
We limit our discussion to the points presented, and by them appellant concedes liability for four weeks’ sickness and claims the benefit of its tender, but asserts that appellee is not entitled to recover for total disability for any period of time under the provisions of the policy and the facts found by the court.
If the performance of such labor under the conditions shown destroys or so modifies the findings, which show total and continuous disability due solely to appellee’s injury for the requisite period of time, that under his policy we are compelled to hold that he dpes not come within the provisions which allow compensation for total disability, then the first and third conclusions of law are erroneous. The findings disclose a situation where the injury was more severe and the results more permanent and harmful than they at first appeared to be, and in which the injured party .showed unusual desire, and put forth an extraordinary effort, to labor while still incapacitated by his injuries. He was in no sense a-malingerer, and the facts present the question whether, by his premature effort to labor while so
is a relative term, depending in a measure upon the nature of the employment, the capabilities of the injured person, and likewise the circumstances and peculiar facts of each particular case. It is usually a question of fact to be determined by the court or jury trying the case and was such question in the case at bar. Indiana Life, etc., Co. v. Reed, supra; Workingmen’s Mutual, etc., Assn. v. Roos, supra; 4 Cooley, Briefs on Ins. 3288-3290; Kerr, Ins. 385.
On the face of the policy it is stated that the “American Liability Company insures the person named as assured * * * from the first of October, 1910, and for such further periods as the premium paid will maintain this policy in force, against the contingencies as hereinafter provided.
“Total Accident Disability.
“A. At the rate of forty dollars per month, for the period, not exceeding twenty-four consecutive months, that the assured is totally and continuously from date of accident disabled and prevented from performing every duty pertaining to any business or occupation, as a necessary result independent of all other causes, of bodily injuries effected through external, violent and accidental means.”
We should then apply the rules of construction above stated and be compelled to hold that the minds of the contracting parties never met upon such proposition and that appellant promised to indemnify appellee to the extent of $40 per month for continuous total disability, and that, in as much as the finding of facts shows such disability independent of the neuritis that developed, such disease is only incidental to the case
The evidence shows that appellee was a fireman and that the engineer helped him perform his duties when he was feeling badly, and that prior to his injury he readily performed all the labor required in his position without any assistance. The trial court had the right to draw from the evidence any reasonable inference, and while the evidence on the points of the amount of the assistance needéd and received by appellee at such time is somewhat meager, we cannot say there is a total failure of evidence from which the' court might infer the facts stated in such finding. The court found and stated the ultimate facts which warrant recovery for six months’ total disability, and there is evidence tend
We find no reversible error. The case seems to have been fairly tried on its merits and a correct result reached. §700 Burns 1914, §658 R. S. 1881.
Judgment affirmed.
Note. — Reported in 114 N. E. 992. Insurance: construction of “total disability” clause in accident policy, 7 Ann. Cas. 815, 8 Am. Rep. 218, 1 Cyc 269, 297, 1 C. J. 462; what constitutes “disability” within meaning of accident or health policy, 38 L. R. A 529, 23 L. R. A. (N. S.) 352, 29 L. R. A. (N. S.) 635, L. R. A. 1917B 108; construction of accident policy, 1 Cyc 243, 1 C. J. 414.