76 F.2d 684 | 5th Cir. | 1935
Lead Opinion
In an action on the health feature of an insurance policy the insured, Dr. Picard, recovered judgment upon a trial held before the district judge without a jury. Pending this appeal by the insurance company the insured died, and his administratrix was substituted as appellee. The only material assignment of error is that the court erred in refusing to grant appellant’s motion for a judgment in its favor.
The policy sued on insures against loss of time resulting from disease which causes total disability and requires the regular and personal attendance of a licensed physician. Clause E provides that the insurance shall not cover periods of disability exceeding 365 days in the aggregate; and it defines total disability to mean inability to engage in any gainful occupation. A “continuous disability rider,” which was attached to the policy, is copied in the margin.
It is suggested that confinement within the house was unnecessary because shortly before it began the insured was able to ride from Shreveport to Galveston in his automobile to see a specialist; but we do not think that this circumstance alone is sufficient to overcome the opinion of the doctors and the finding of the trial court that confinement became reasonably necessary before the expiration of the 365-day period covered by the face of the policy and before the effective date of the rider. That trip was taken by the insured in a vain search for relief, and occurred at a time when he had the right under his policy to make it. It cannot be held against him for anything done after the rider became effective. Appellant’s real contention is that the insured, though totally and continuously disabled by disease, was not “confined within the house” within the meaning of the rider. Policies of this kind, though varying somewhat in phraseology, have been many times before the courts. A rather strict construction has been applied to them in the cases which immediately follow: Rocci v. Massachusetts Accident Co., 222 Mass. 336, 110 N. E. 972, Ann. Cas. 1918C, 529; Reeves v. Midland Casualty Co., 170 Wis. 370, 174 N. W. 475, 959; Buske v. Federal Casualty Co., 200 Wis. 18, 227 N. W. 239; Dunning v. Massachusetts Mutual Accident Association, 99 Me. 390, 59 A. 535; Sheets v. Farmers’ & Merchants’ Mut. Life & Casualty Ass’n, 116 Kan. 356, 225 P. 929; Richardson v. Interstate Business Men’s Acc. Asso
The judgment is affirmed.
“For total disability arising prior to tbe insured’s sixtieth birthday and before the expiration of the 365 days described in Clause E of the attached policy, the weekly indemnity provided by said policy shall continue to be payable to the insured beyond said 365 days so long as he thereafter lives and is continuously totally disabled by accident, or similarly disabled and necessarily confined within the house by disease, in either ease under the regular care of a licensed physician. Total disability due to tuberculosis, paralysis, blindness, insanity, paresis, cancer or lo-comotor ataxia shall however be construed as confining sickness hereunder irrespective of whether or not the insured be strictly confined within the house. In all other respects the terms, provisions, and conditions of said Policy remain the same.”
Dissenting Opinion
(dissenting).
Dr. Picard had arterio-sclerosis, a disabling disease which he and his physicians knew was incurable. He collected the $13 per day indemnity for total disability for 365 days promised in the main policy. His present claim is for the additional insurance granted by the rider which for an increase of premium was added to the main policy. The rider adopts many of the provisions of the policy, but for the most important- provision, that fixing the coverage, it substitutes its own terms ■ materially and purposefully different. The promise in the rider is to pay after 365 days the same daily indemnity during Dr. Picard’s life if he is “continuously disabled by accident” — a contingency not here involved — or if “similarly disabled and necessarily confined within the house by disease, in either case under the regular care of a licensed physician.” The main policy. covered disability from disease although not sufficient to confine within the house, but only for an aggregate of 365 days, for a premium of $39 per quarter. The rider agrees to pay the same daily amount but during an indefinite period, for the much less premium of $11'.70 per quarter. A comparison of the premiums makes it evident that the scope of the new risk must have been intended to be much restricted. --A court has no more right to enlarge the agreed risk by artificial construction than it would have to increase the daily sum to be paid. To come under this rider the disability from disease must not only be continuous but must make confinement within the house necessary. The words are, within the house, not to the house. That confinement within the house means what it says is emphasized by the words which follow : “Total disability due to tuberculosis, paralysis, blindness, insanity, paresis, cancer or locomotor ataxia shall, however, be construed as confining sickness hereunder irrespective of whether or not the insured be
“Q. Is Dr. Picard ill? A. Yes.
“Q. Is he wholly disabled from working ? A. He is.
“Q. Is he confined to bed? A. No, he is up every day.
“Q. Is he necessarily confined within the house? A. No, he goes out every day. His physician advises him to.”
The friend could not truthfully answer otherwise. Nor can a court.
The truth could not be changed by any number of judicial precedents. But in reality each of the conflicting cases cited is unlike this one either in its circumstances or in the policy words dealt with. Of course, a man too sick to be out of the house might conceivably have to go out in an emergency, for instance to go to the hospital, or to escape a fire, or even to get a change of climate. This would not forfeit the insurance under this rider; nor would a voluntary but unnecessary staying indoors ripen it. The rider postulates a disease which not only continuously disables but which also requires that the patient stay within the house. Whether he in fact'stays in or not is only evidential of his real condition. Unless he is so bad off that he should stay in, or else has one of the seven maladies specially named, the rider does not cover his case.