261 P. 565 | Kan. | 1927
The opinion of the court was delivered by
The plaintiff sued the defendant insurance company to recover upon a health insurance policy for the period he was wholly disabled to perform his usual duties by reason of barber’s itch. After a trial by jury he was given a judgment for $330, from which the insurance company appeals.
In his bill of particulars plaintiff claims $650 for house-confinement, twenty-eight weeks at $25 a week, $190 for non-house-confinement, 19 weeks at $10 a week, and $100 for hospital indemnity. The abstract and briefs do not disclose the component parts of the verdict or whether it contains an allowance for hospital indemnity. If it does, that part of the verdict is not reviewed, the main controversy being whether the insured is entitled under the facts in the case to recover under the house-confinement provision of his policy. The insurance company demurred to the evidence of the insured, and when the demurrer was overruled rested without introducing any evidence. The jury found specially -that the insured was under the care of a physician from June 3, 1925, to September 1, 1925, and was compelled to refrain from performing every act of business for ten weeks from June 20, 1925, to August 28, 1925.
The evidence shows that the insured was a farmer living just north of the town of Mulvane about a half mile from the physician’s
The two provisions of the insurance policy under which recovery is sought — the house- and non-house-confinement provisions — are as follows:
“If as a result of such disease the insured shall bo continuously confined within the house under the constant treatment of a regular physician, the association will pay for a period not exceeding thirty weeks, that such disease shall compel the insured to be so confined and treated, a weekly indemnity of $25. . . .
“If as a result of such disease the insured shall not be confined to the house, but shall be .compelled to refrain from performing every act of business, and be under the constant treatment of a regular physician, the association will pay for a period not exceeding eight weeks, a weekly indemnity of $10.”
This court has had this identical question before it, and has decided that when parties contract as to recovery of different amounts, depending upon house-confinement and non-house-confinement, “the court is not warranted in ignoring or eliminating an unambiguous provision included by the parties in their contract.” (Sheets v. Life Insurance Co., 116 Kan. 356, 358, 225 Pac. 929.) The syllabus of this decision is as follows:
“A health insurance policy which stipulates for full indemnity for a disabling sickness for a period during which the insured is necessarily and" continuously confined to the house, and a lower specified rate for such a sickness when he is not so confined, does not warrant the payment'of full indemnity for the time the insured is able to leave the house and make visits to his physician.
“Under such a contract mere disability of the insured to work or pursue his ordinary avocation does not entitle him to the higher rate, but to recover full indemnity the degree of his disabling sickness must be such as to confine him to the house.”
In the above-cited case the insured was sometimes confined to the house or hospital for a few days during and after an operation-, but in the case at bar he was never so confined. In that case the word “continuously” had to be construed. Not so here. We are aware there is a lack of uniformity upon this question, some of the courts holding in favor of a more liberal construction of the term “house-
Three other points are argued in the briefs: First, failure to give required notice of the sickness within ten days; second, the right of the company to apportion with other insurance companies when insurance is carried in them without notice to the defendant company; and, third, error in the language of instruction No. 5, defining confinement to house as depending upon whether or not the plaintiff was able by his own efforts to leave the house. A reference to section 4 of the policy requiring notice to be given it of the sickness, shows it must be given within ten days after the commencement of disability. The evidence shows the insured worked in his harvest until June 20, although he was sick before that time. He sent the notice June 30.
As to section 17 of the policy, requiring notice to be given the company if other insurance is carried we would hesitate to con-
With reference to the third point, as to the instruction making house-confinement depend upon whether or not defendant was able with his own efforts to leave the house, what has heretofore been said in this opinion as to house-confinement being an unambiguous term and needing no special definition will dispose of that question. We think it is a question of fact easily applied and readily comprehended without qualification; not forgetting, however, extreme exceptions as mentioned in the Sheets case like the burning of a dwelling on order of the board of health.
We conclude that the insured is not entitled to recover anything under the house-confinement provision of the policy, but is entitled to recover the full amount under the non-house-confinement provision, or eighty dollars for eight weeks at ten dollars per week; and if any allowance for hospital indemnity was included in the judgment and was within the limits of the policy, such allowance is approved.
The judgment is reversed in part and affirmed in part, and the cause is remanded with direction to render judgment for the insured in accordance with the views herein expressed.