American Life & Accident Ins. v. Nirdlinger

73 So. 875 | Miss. | 1916

Sykes, J.,

delivered the opinion of the court.

The appellee filed suit in the circuit court of Lauderdale county against the appellant accident insurance company, based upon a health and accident insurance policy issued by the appellant insuring her deceased husband, Charles J. Nirdlinger, and agreeing in said policy to pay him certain amounts a month while sick or disabled. While this policy was in force the insured became ill and died before the institution of this suit. The declaration alleges that the deceased became ill on the 14th day of May, 1914, and was totally disabled from attending to any business up to and including the date of his death, which occurred on August 5, 1914. The appellee sued for one hundred dollars a month for a period of three months under clause E of the said insurance policy, which clause reads as follows:

“At the rate of one hundred and no one-hundredths dollars per month for the number of consecutive days, after the first week, that the insured is necessarily and continuously confined within the house, and therein regularly visited at least once a week by regularly qualified physician by reason of illness that is contracted and begins after this policy shall have been maintained in continuous force for sixty days; or, if during convalescence immediately following said confinement, or if by reason of any nonconfining illness, the insured shall be wholly and continuously disabled from performing any act or duty pertaining to any business or occupation, though not confined within the house, and shall require the regular attendance of a physician, the company will pay an indemnity at one-half the above rate for a period not exceeding two (2) consecutive months: Provided, that the combined period for which indemnity shall be paid under this paragraph for anv one illness shall not exceed six (6) consecutive months: Provided, further, should disability be caused or contributed to by rheumatism, tuberculosis, paralysis, sciatica, neuritis, Bright’s disease, lumbago, cancer, hemorrhoid, dementia or insanity, the company’s liability shall be limited under this paragraph to a period not exceeding one month during any one policy year.”

On the trial of this cause the lower court gave the following instruction for the plaintiff:

“The court charges the jury for the plaintiff that if you believe from a preponderance of the testimony that Chas. J. Nirdlinger was wholly and continuously prevented from attending to his usual and regular duties about his regular business by reason of his illness, then' your verdict must be for the plaintiff, and in such sum as will cover such disability at one hundred dollars per month for the time so disabled, in all not to exceed the sum sued for.”

The giving of this instruction is one of the assignments of error. This instruction is predicated upon the theory that if the insured was wholly and continuously prevented from attending to his regular business by reason of his illness, then a recovery for the full amount could be had. There are two kinds of accident or health insurance policies. One kind, commonly called an occupation policy, provides for the payment of certain premiums during the time that the insured is totally or partially disabled from performing any or all his duties pertaining to his occupation or business. The other kind of policy is a general accident and health policy which does not make, the payment of these premiums depend solely upon the total or partial disability of insured from pursuing his occupation or calling, but rather makes, the payment of premiums dependent upon the insured’s being confined either in bed to his house or home, or within 'the house. The policy in question is of the latter character. It makes the payment at the rate of one hundred dollars a month dependent upon the insured’s being “necessarily and continuously confined within the house, and therein regularly visited at least once a week by a qualified physician by reason of illness that is contracted and begins after this policy shall havé been maintained,’ ’ etc.

This clause also provides that: “If by reason of any nonconfining illness, the insured shall be wholly and continuously disabled from performing any act or duty pertaining to any business or occupation, though not confined within the house, and' shall require the regular attendance of a physician, the company will pay an indemnity at one-half the above rate for a period not exceeding-two (2) consecutive months.”

The testimony in the case shows that the deceased was ill for the three months, but that during this time he went from his home to his'store in Meridian almost if not every day; that he had a cot in the back of the store and would lie down a great part of the time;- that he sometimes waited on customers and helped his wife with the management of the store. He also made a trip to Stafford Springs and another to Cooper’s Wells during his illness. The testimony does not show whether he was confined to his room or bed at either of these health resorts. Neither does the testimony show whether or not during any of the time he was in Meridian he was confined to his house and unable to go to the store. It is the contention of the appellee in this case that she can recover under the authority of Insurance Co. v. King, 102 Miss. 470, 59 So. 807. In the King Case there were two policies upon which suit was brought, one a special occupation policy, the other a policy of insurance covering-life insurance combined with a weekly indemnity for sickness and accident, the latter policy being quite similar to the one in this case. In passing upon the special occupation policy, Justice Cook had the following to say:

“The purpose of this policy was to indemnify appellee against loss of time in the occupation which he was following, and, while paragraph (e), taken alone, seems to make his confinement to his room continuously a condition precedent to his right of recovery, yet, read in connection with paragraph (k), it seems clear to us that the real test of his right of recovery depends upon whether he was disabled, during the time limit, to perform the duties required of him by his employment. It therefore follows that the trial court was right in directing the jury to find for forty dollars under this policy.”

In the King Case the appellee was confined to his. bed for a week, and then called in a doctor.^ The doctor advised him to get up as much as possible and take exercise. Acting on this advice of his physician, the plaintiff did at intervals get out bed and attempt to take exercise, which caused pain and inconvenience. The evidence also showed that the plaintiff in that case sometimes went out of the room into the yard. In the King Case it will he noted, however, that the reason why King left his bed was because of his doctor’s instructions. In the other policy in that case, paragraph 3 provided that weekly benefits for sickness will only he paid when the assured has been confined strictly to his or her bed for seven consecutive days. Justice Cook, as to this paragraph, says:

“The evidence shows that he was confined to his bed for seven consecutive days, and we find no provision in this policy which excludes the first week of sickness from the benefits of the indemnity.”

Clause E in the policy in suit provides that the total premiums of one hundred dollars a month are only due when the insured has been “necessarily and continuously confined within the house, ’ ’ etc. It in no way makes the recovery of this amount dependent in any manner upon the disability of the insured to follow his usual avocation. In this case the insured was not necessarily and continuously confined within the house. He was not going to his place of business under the advice of any physician. This being true, a right of recovery in this case would come under the nonconfining illness clause above quoted, at least for the time that the plaintiff .went to the store. The nonconfining clause somewhat resembles the occupation policy, in that it allows this recovery, provided' the insured is wholly and continuously disabled from performing any act or duty pertaining to any business or occupation. These contracts of insurance, where the terms áre plain and unambiguous, are to be construed like any other contracts between parties. It is only where the terms are ambiguous or doubtful that the doubt is to be resolved in favor of the insured and against the insurer.

There are a great many cases construing the meaning of policies requiring that the insured must be confined to his bed, or to the house, or within the house. In a number of these cases, as in the King Case, the insured had gone out of the house on the porch under the advice of his physician. A majority of these cases hold that this would not prevent a recovery. This clause is to be liberally construed to give effect to the intent and purpose of the contracting parties, and means that when the insured is ill enough to be confined to his house and is so confined, except when he gets up under the advice of a physician in order to try to improve his health, then a recovery may be allowed. A few courts strictly construe similar clauses in insurance policies, but the decided weight of authority is to give such clauses a liberal construction. Similar clauses have been passed upon and discussed in the following cases: Scales v. Masonic Protective Association, 70 N. H. 490, 48 Atl. 1084; Cooper v. Phoenix Accident & Sick Benefit Association, 141 Mich. 478, 104 N. W. 734; Hoffman v. Michigan Home & Hospital Association, 128 Mich. 323, 87 N. W. 265, 54 L. R. A. 746; Bishop v. U. S. Casualty Co., 99 App. Div. 530, 91 N. Y. Supp. 176; Liston v. N. Y. Casualty Co., 28 Misc. Rep. 240, 58 N. Y. Supp. 1090; Schneps v. Fidelity & Casulty Co., 101 N. Y. Supp. 106; Dunning v. Massachusetts Mutual Accident Association, 99 Me. 390, 59 Atl. 535; Shirts v. Phoenix Accident & Sick Benefit Association, 135 Mich. 439, 97 N. W. 966.

It therefore follows that it was reversible error for the court below to give the above instruction to plaintiff.

The testimony of a physician, who was called in to see the insured about two months after this policy was issued, is that at that time .the insured was suffering with Estivor Autumnal fever, which is chronic malarial fever. This physician was unable to testify whether the insured was so suffering at the time this policy was taken x>nt. Clause H in this policy, among other things, provides as follows:

“All disability or illness resulting wholly or in part from strains, or from hernia, orchitis, venereal or chronic disease, . . . the limit of the company’s liability shall be one-fourth of the amount which would otherwise be payable under this policy, and the limit of the company’s liability under this paragraph shall not exceed two month’s disability, anything herein to the contrary notwithstanding.’ ’

A physician who testified for the defendant gave it as his opinion that the insured must have been suffering with this chronic malaria at the time the policy was issued. The appellant was refused the following instruction:

“The court instructs the jury for the defendant that if they believe from the evidence in this case that C. J. Nirdlinger suffered from Estivor Autumnal fever, and that it was chronic, and that he at the time of his application to defendant herein for insurance and at the time said insurance was issued to him had this above-named fever, then the jury cannot find for the plaintiff in the sum greater that fifty dollars.

“The court further instructs the jury for the defendant that if from the testimony they should find for the plaintiff in computing the damages, they are restricted to the time from May 14, 1914 to August 5, 1914.”

The appellant contends that under the testimony of these two physicians it was a question of fact to be decided by the jury whether or not the insured was suffering from this chronic malaria at the time this policy was issued. That if he was, then his recovery would be limited to one-fourth of the amount otherwise payable under this policy for two months under clause H. The meaning of this clause is ambiguous. Therefore, construing the same against the insurer and in favor of the insured, the words “venereal or chronic disease,” without the word “disease” following the word “venereal,” and with no comma or other punctuation mark between them, we think, its meaning here is chronic disease of like character with venereal diseases. It therefore follows that the court was correct in refusing this instruction asked by the appellant.

Reversed and remanded.