Complainant brought this suit to recover the indemnity for "confining illness" under a health and *16 accident policy issued to him by defendant. The cause was tried before the Chancellor and a jury. Complainant's proof consisted of his testimony and the deposition of his physician. Defendant offered no proof. The Chancellor discharged the jury and decreed complainant a recovery of $150, the maximum provided by the policy for "nonconfining illness."
Complainant appealed in error and insists that the Chancellor should have allowed him a recovery at the rate of $100 per month for "confining illness" from the date his illness began, October 14, 1944, on so long as it continues, not to exceed 24 months, as stipulated in the policy.
Both parties treat the facts as undisputed and, we understand, both agree that there was no issue for the jury and it was proper for the Chancellor to decide the case upon the undisputed facts and the applicable law, and that the only question before us is whether such facts bring the case within the provisions of part "K" or within those of part "L" of the policy.
Part "K" provides an indemnity at the rate of $100 per month, not to exceed 24 months, for disability from disease which "confines the Insured continuously within doors and requires regular visits therein by a legally qualified physician," "provided said disease causes total disability and necessitates total loss of time." Part "L" provides an indemnity at the rate of $50 per month, not to exceed three months, for disability from disease which "does not confine the Insured continuously within doors, but requires regular medical attention," "provided said disease necessitates continuous and total disability and total loss of time."
Complainant is afflicted with coronary thrombosis, a serious disease of the heart. He was stricken in the evening *17 of October 14, 1944, was taken next morning to the clinic of Dr. O.N. Bryan, and from then on till the trial he was under continuous treatment by Dr. Bryan, who was stipulated to be an expert. For the first three or four weeks part of the treatment was absolute rest in bed except for his visits to the doctor's office. Thereafter part of the treatment was to have him take short walks for the fresh air and sunshine and to prevent deterioration of the heart muscles from continuous lying in bed.
During this period complainant was unable to do any work. In his application for the policy he had stated his occupation was a grocer. Dr. Bryan described his condition and expressed the opinion that he was totally and permanently disabled to perform the duties of that occupation or to do any work requiring physical exertion. In its brief defendant concedes he is totally disabled.
Its defense is that he was not confined continuously within doors and regularly visited therein by his physician, as required by the policy to entitle him to the indemnity he claims. At first he went to his doctor's office every three or four days and later about once a week. In good weather he took short walks on his doctor's advice. After defendant denied liability he came on the bus to town a number of times — once or twice to defendant's office, once to the Insurance Commissioner's office, several times to his lawyer's office, and once to testify in court.
So the question is whether, his total disability being conceded, his claim should be denied because, instead of staying continuously within doors and being there treated, he went out to the extent stated for his treatment and in connection with his claim.
Similar provisions requiring the insured to be "confined continuously within doors," or "confined to his room," or "necessarily confined to bed" have often been *18 before the courts; and while none of them construes or applies such provisions literally, their decisions are by no means harmonious.
Some courts apply such provisions quite strictly, and deny recovery where the insured visits his physician, goes out for fresh air or sunshine or exercise, or leaves his house for any purpose except for an exigency compelling his removal by reason of fire, an order of the board of health, or the like. Sheets v. Farmers' Merchants' Mut. Life Cas. Ass'n,
But the majority of courts construe and apply such provisions liberally in favor of the insured, and hold that his right to recover is not defeated by the fact that he visits his physician for treatment, or goes out on the physician's advice for fresh air or sunshine or exercise, or goes to a hospital or to a different climate for his treatment, or goes out occasionally for other purposes, provided he is entirely incapacitated for work or business on account of his illness. Jennings v. Brotherhood Acc. Co.,
Decisions in this State are in line with this liberal view, and this Court is committed to the rule of a liberal construction of such provisions in favor of the insured. National Life Accident Ins. Co. v. Armstrong,
In the Bradley case, supra, the insured, a laborer, became totally disabled by blindness. But, attended by his wife, he went out "at intervals for the purpose of obtaining medical aid and to attend to necessary business matters or to obtain exercise." Nonetheless he was held to have been "necessarily confined to his room and there visited by a duly licensed physician," under the liberal construction that should be given this provision.
In the Wilkes case, supra, the provision was "necessarily confined to bed" — a stricter requirement, as noted by Judge Senter, than "confined to his room." The insured was totally disabled by paralysis of his legs. He was otherwise in perfect health. He could use crutches and, with the aid of an attendant, could go wherever he chose. In these circumstances the court held he was not "necessarily confined to bed," but indicated he was substantially "confined to his house." The court approved the decision in the Bradley case, supra, and quoted approvingly from the Breil case, supra (
In the Spurlock case, supra,
The Armstrong case, supra,
Judge McAmis fortified this conclusion with numerous authorities, and pointed out that the primary purpose of this form of insurance is to provide indemnity against totally disabling illness and the purpose of the confinement provision is subordinate and more or less evidentiary. He said: "We are of opinion, considering the purpose of the policy, that the provision that insured should be paid benefits only while necessarily confined to his bed and there visited professionally by a licensed physician was intended more as a protection against malingerers than as a condition precedent to the right of recovery. . . ." *21
This view is well supported by the authorities. Some regard the extent of confinement merely as evidentiary and not as an ultimate fact. 6 Cooley's Briefs on Insurance, 2d Ed., 5549. Others say the purpose of such provision is to describe the character and extent of the insured's illness rather than to prescribe a limitation upon his conduct. Thompson v. Mutual Ben. Health Accident Ass'n,
Counsel refer to Bockman v. Mutual Health B. A. Ass'n,
The case of Stubblefield v. Mut. Ben. H. A. Ass'n,
It is true that case, while recognizing the liberal rule of construction applicable to such provisions, undertook to draw a distinction where there is one rate for nonconfining illness and another for confining illness; and it was said that a "literal" construction should be applied to such provisions, or the one for nonconfining illness would be meaningless.
Such an expression, however, was unnecessary to a decision; and it is out of line with our earlier and later cases, contrary to the great weight of authority elsewhere, and perhaps without support anywhere. We think there is no ground for such a distinction. Both kinds of provisions can, and should, be liberally construed in favor of the insured, and the one applied which more nearly fits the facts of the particular case. Where the insured has been totally disabled and substantially confined, that provision should be applied; where he has not been so confined, the other provision should be applied.
It is a general principle, pervading the law of all forms of insurance, that policies shall be liberally construed in favor of the insured. This because courts do not shut their eyes to realities; they know that the policy is a contract of "adhesion," i.e., not one which the parties have reached by mutual negotiation and concession, not one which truly expresses any agreement at which they have arrived, but one which has been fixed by the insurer and to which the insured must adhere, if he chooses to have insurance. See Vance on Insurance, 2d Ed., 201.
For example, total disability insurance, in terms payable only where the insured is "wholly and permanently *23
unable to perform any work for any kind of compensation of financial value," is construed to protect him against incapacity to earn substantially in any business for which he is qualified. Prudential Ins. Co. of America v. Gang, Tenn. Sup.,
And such is the construction and application given them by other courts. Wade v. Mutual Ben. Health Accident Ass'n, supra; Thompson v. Mutual Ben. Health Accident Ass'n, supra; Mutual Benefit Health Accident Ass'n v. McDonald,
Our conclusion is that complainant is entitled to recover the indemnity for total disability from "confining illness." He was totally disabled and substantially confined continuously within doors. The fact that he went out to the extent stated for purposes of his treatment and his claim did not break the continuity of his confinement.
But we cannot agree with complainant's contention that he is entitled to recover for the period from October 14, 1944, on so long as his illness continues The bill was filed May 22, 1945; the final decree below was entered May 5, 1946. There was, however, no supplemental bill filed to lay a basis for recovery for the period *24
between the filing of the original bill and the entry of the final decree. Without such supplemental pleading, complainant was entitled to recover only up to the date of the filing of the bill. Phifer v. Mutual Ben. Health Acc. Ass'n,
The Chancellor's decree is reversed and a decree will be entered here in favor of complainant against defendant for $726.66, being the indemnity at the rate of $100 per month for the period from October 14, 1944, to May 22, 1945, together with all the costs of the cause.
Howell and Hickerson, JJ., concur. *25