73 Colo. 308 | Colo. | 1923
delivered the opinion of the court.
The plaintiff McDonald, a carpenter by occupation, living at Aurora, Colorado, held an accident and health policy of indemnity issued by the defendant company. Among other things it provides that any accidental injury to the insured, resulting in septicaemia, shall be classed and paid
“Part H. Confining Illness, Twenty-four dollars per week. For total disability of one day or more resulting from sickness originating after thirty days from date of this policy, and confining the insured continuously within doors, payment will be made as follows:”
The payment is at the rate of $24.00 per week not exceeding thirty weeks.
“Part I. Non-Confining Illness, twelve dollars per week. For total disability of one day or more, resulting from sickness originating after thirty days from date of this policy which does not confine the Insured continuously within doors, amount to be paid shall be one-half the amount allowed for confining illness, but not exceeding five weeks.”
The plaintiff having received án injury resulting in septicaemia, sued for compensation in the sum of $852.00. The defendant admitted liability in the sum of $248.55. The trial to the court, without a jury, was on stipulated facts, and judgment thereon was for plaintiff in the sum of $780.00 and costs, of which $720.00 was for thirty weeks’ loss of time under paragraph “H” at $24.00 per week, and $60.00 under paragraph “I” for five weeks at $12.00 per week. On this writ of error by the insurer, only questions of law are involved.
The salient facts are that on August 4, 1920, plaintiff was attacked and bitten by a ferocious and vicious dog, thereby sustaining bodily injuries which resulted in septicaemia, commonly called blood poisoning. As a result thereof, and independently of all other causes, the plaintiff was, on August 4, 1920, and ever since that time, and up to the beginning of this action, has been, totally disabled and prevented from attending to any business. He did not leave his home or go out of his house between August 4, and September 28, and during such period was treated by a physician at his house. On September 28, and thereafter, and until the complaint was filed, and approximately once each week, plaintiff left his home and
The material question in the case is as to the meaning and construction of the words in paragraph “H”: “total disability * * * resulting from sickness, * * * and confining the insured continuously within doors”, in connection or contrasted with, as defendant says, the words in paragraph “I”: for total disability * * * resulting from sickness * * * which does not confine insured continuously within doors.” The meaning of the phrase in controversy, as of any particular clause in any contract, is not to be determined as if it stood alone, but in connection with all other provisions, as a whole. It is sometimes said that a policy or contract of insurance is to be construed most strongly against the insurer since he selects the words of which it is composed. That is not an exact or accurate statement of the rule of law. Speaking generally, it is to be construed the same as any other contract. If the meaning is obscure, uncertain or ambiguous, or words of an equivocal or doubtful meaning are employed, the presumption is against the insurer, by whom the instrument is drawn, but when the words are so plain that there is no room for construction, the contract should not be so interpreted as to introduce an ambiguity, and then enforced in favor of the insured. The insured took out this policy as an indemnity against loss of time in case of total disability to pursue’ his usual avocation. That is the principal object of the contract. The protection which it affords is what the insured paid his premium for. It is in connection with this, the main object of the contract, that the meaning of its other subordinate or limit
The language is not always to be interpreted literally. No forced or unnatural meaning should be given. Sympathy with the insured, because of his disability, should not swing judgment in his favor, or give him compensation to which he is not, within the terms of the contract entitled. Refined reasoning of the insurer, by its seductive charm, must not be rewarded by withholding from the insured the fruits of the contract to which he is entitled. Where a clause in a contract of insurance is susceptible of two constructions, that one will be adopted which is most favorable to the assured. Metropolitan Cas. Ins. Co. v. Bergheim, 21 Colo. App. 527, 536, 122 Pac. 812.
There is no question as to the plaintiff’s total disability. That is admitted.' But in a plausible and ingenious argument, counsel for the insurer contend that the stipulated facts show that the insured was not “continuously confined within doors” during the entire period of time for which full indemnity was given. They say that the ordinary meaning of “continuously” is “without break, cessation. or interruption.” Since the insured, after September 28, and until the beginning of this action, although during all that time he was totally disabled, went out of his house once each week, and rode in the street cars to the City of Denver for the sole purpose of receiving medical treatment, he, therefore, forfeited his right to full indemnity after his first visit. The insurer unquestionably had the right to insert such a limiting clause in its contract, and unless it is enforced by the courts as written, and as properly interpreted, a new contract by ju
In the Jennings case the language of the policy, page 75, provided: “A disability, to constitute a claim for indemnity for sickness only, shall be continuous, complete and total, requiring absolute, necessary confinement to the house for not less than fourteen consecutive days * * *.” If there is any difference between the meaning of this clause and the one now before us, the former is more strict and far-reaching, yet in the Jennings case the insured, during a considerable portion of the period for which he claimed sick benefits, was outdoors nearly every day by advice of his physician, when the weather was favorable, and he was- not- continuously or actually confined to his house or to his bed every hour and minute of the day. We do not think there is any material difference between the phrase: “confined to his house”, and “confined within doors”. The doctrine announced by our own Court is also declared in the following, among other cases: Great East. Cas. Co. v. Robins, 111 Ark. 607, 164 S. W. 750; Baker v. State’s Acc. Ins. Co., 200 Ill. App. 473; American Assur. Co. v. Dickson, 34 Ohio Cir. Ct. R. 313; Dulany v. Fidelity & Cas. Co., 106 Md. 17, 66 Atl. 614; Ramsey v. Genl. Acc. Ins. Co., 160 Mo. App. 236, 142 S. W. 763; Interstate Bus. Men’s A. Ass’n v. Sanderson, 144 Ark. 271, 222 S. W. 51.
The phrase in the Sanderson case was: “to remain continuously and strictly within the house”—a more-emphatic statement than the one in the instant case. The insured, under directions of his physician, went out for a short time each day for the purpose of getting sunshine and fresh air. He was not prevented from recovery of full indemnity.
One of the cases on which the insurer relies is Rocci
“While it should not be given a constricted interpretation as applied to the subject matter, so as to exclude for example a transfer of a person seriously ill from his house to a hospital and back again or other imperative removals, it cannot be extended to include frequent changes from one house to another. * * * ‘Within the house’ naturally means one house * * * especially when construed with the next clause, which requires that the insured be ‘therein regularly visited by a legally qualified physician’ ”.
The insured remained in his own house only two weeks, then went in a carriage to his sister’s house in Roxbury, where he stayed two weeks, thereafter he was three weeks in the city hospital, three or four weeks in a different hospital, and then, after another period at home, went to Med-ford, a city several- miles north of Boston, for two weeks, and thereafter was at another hospital in the south of Boston. The court properly said, under such a state of facts, the deceased was not “continuously confined within the house, and * * * therein regularly visited by a physician”, with due regard to the meaning of the limiting words. Even the most liberal construction would not bring the case within the policy. It is a fair inference from the entire opinion that, in a case like the one before us, the Massachusetts court would hold that, within the fair meaning of these limiting words, the insured was “continuously confined within doors”. Whether these quoted words are to be considered as “ultimate” or “evidentiary” facts, is not important. In either case, by fair construction, they do not preclude recovery of full indemnity where the insured occasionally goes out of his house for medical treatment for the injury in question.
A few illustrations will show the fallacy of the argu
If there is any doubt about our conclusion, another clause of this policy, to which there is no reference in the briefs, entirely removes it. Immediately after the 16th paragraph is this provision: “Additional Provisions. (a) This policy does not cover death, disability, or other loss * * * while the Insured is not continuously under the professional care and regular attendance, at least once a week, of a licensed physician or surgeon, other than himself.” Limiting clauses, as we have said, should be construed in connection with all other provisions of this contract, including the one just quoted. The latter makes it imperative for the insured to have such professional care and attendance. He is supposed to follow, and would be justified in obeying, his physician’s advice and directions. The “care and attendance” are not required to be given in the house. It might be, as where some unusual surgical operation, or an X-Ray examination, is imperative, that
Upon principle, as well as authority of our own and other appellate courts, the decision of the county court was right and its judgment is accordingly affirmed.
Mr. Chief Justice Teller and Mr. Justice Sheafor concur.