56 S.W.2d 425 | Ark. | 1933
In June, 1922, appellant issued to appellee its policy of accident and health insurance, by which it agreed to pay him $50 per week for total disability caused by sickness for a total period of 60 weeks. The application for the policy was taken in Fort Smith and forwarded to appellant at its home office in Massachusetts, where the policy was promptly issued. The application provided for a quarterly premium of $43.25 until he was fifty years of age, and thereafter a quarterly premium of $45. This application was changed at the home office to show a quarterly premium up to fifty years of age of $46.25 and thereafter of $53.75, and the policy as issued contained or called for these amended amounts as quarterly premiums, and attached to the policy was a letter calling appellee's attention to such changes. The policy, with letter attached was forwarded by appellant to its agent in Fort Smith for delivery to appellee. It was accepted by him, and the premium was paid according to such changed amounts, and has been continuously paid since that time. Also attached to the policy is what is called a "continuous disability rider," which reads as follows: "If total disability resulting from disease and arising thereunder prior to the insured's sixtieth birthday continued beyond the sixty weeks described in clause 1 of the attached policy, the weekly indemnity provided for by clause A of said policy shall continue to be payable to the insured so long as he thereafter lives and is continuously totally disabled and necessarily confined within the house under the care of licensed physician. In all other respects the terms, provisions and conditions of said policy remain the same."
More than sixty weeks prior to August 1, 1931, appellee became totally disabled, being afflicted with heart trouble, known as myocarditis, for which appellant paid *846 to him $50 per week for sixty weeks, which expired August 1, 1931, and thereafter it refused to pay under said "continuous disability rider," although demanded so to do, because it claims appellee was not "necessarily confined within the house," as provided in or within the meaning of said rider. Suit was thereafter brought to collect the accumulated benefits which had accrued under said policy, which resulted in a verdict and judgment in appellee's favor with penalty and attorney's fees.
For a reversal, appellant first insists that the evidence is insufficient to entitle appellee to recover. It admits that he is totally disabled, was so during the sixty weeks for which it paid up to August 1, 1931, and still is. But it says, in order for him to be entitled to recover under said rider for continuous disability, he must not only be totally disabled, but must be confined within the house as a necessary result of his sickness. In other words, it is contended that he was not "necessarily confined within the house." This contention is based on the fact that appellee, under the advice of his physicians, took frequent short automobile rides, in favorable weather, for fresh air and sunshine; that he also, under the same advice, took a train trip to the seashore at Corpus Christi, Texas, for a change of climate and for the salt air; and that he made an automobile trip to Monticello, Arkansas, to spend Thanksgiving with relatives and friends. This evidence, of course, shows that he was not confined within the four walls of his house for every minute of the day. But does it show such a break in confinement as to preclude a recovery as a matter of law? We do not think so, and we think the case is ruled on this point by the previous decisions of this court in Great Eastern Casualty Co. v. Robins,
It is next insisted that the policy and rider constitute a Massachusetts contract, and that the courts of said State have placed a different construction on the language used than the foregoing, and hold under such circumstances there is no liability. The case of Rocci v. Mass. *848
Acc. Co.,
Complaint is also made of the action of the court in giving appellee's instruction No. 3 and in refusing to give appellant's requested instruction No. 4. What we have already said disposes of these assignments. No. 3 was similar to that given in the Robins case, which was there approved, and No. 4 was properly refused.
Other assignments are argued, which we have carefully considered, and find them without merit. We think it unnecessary to discuss them, and to do so would unduly extend this opinion.
We find no error. Affirmed.