6 Tenn. App. 206 | Tenn. Ct. App. | 1927
This cause involves the right of an insurance company to withhold the payment of disability benefits under two insurance policies, on the ground that the insured refuses unreasonably to submit to a surgical operation, which it is alleged would remove the physical disability. The Chancellor held in denial of this claim of right, and rendered a decree for the amount of the stipulated benefits to the date of the decree. The complainant, a farmer, forty-six *207 years of age, obtained on April 28, 1924, two policies of insurance, one for $2000 and the other for $3000, from the defendant Life Insurance Company. Both of said policies were complete protection endowment policies, nonparticipating, maturing in thirty-nine years. He paid the premiums thereon, including the additional premiums for the following supplementary provisions:
"If the insured under the policy to which this is attached, shall notify the company prior to attaining the age of sixty (60) years and while said policy is maintained in force, by the payment of premiums, that he has been so disabled by bodily injury or disease as presumably to be permanently, continuously and wholly prevented for life `from pursuing any and all gainful occupation; the company upon receipt of satisfactory proof of such disability, will waive the payment of premiums as and when they become due under said policy during the continuance of such disability, and the values in the tables "Of Guaranteed Values" in said policy shall increase from year to year in the same manner as if the premiums were paid by the insured, and without impairment or reduction of the face or other values of the policies, the company will pay the insured or his legal representatives one per cent per month of the amount insured under such policy, the first payment to be made at the end of ninety days from the commencement of such disability and a like amount the first day of each succeeding month, such payments to continue during the life time of the insured, or until the maturity of said policy as an endowment.'
"The company shall have the right to examine the person of the insured, at all reasonable times, after receiving notice of disability, and shall have the right from time to time, but not oftener than once a year, during the continuance of the monthly payments provided for herein, to demand and receive proof of continuance of disability."
"Should the insured recover so as to be able to engage in any gainful occupation, the premiums thereafter falling due shall be paid by the insured in conformity with the policy, and the monthly payments, provided for herein shall cease. There shall however, be no obligation on the insured to repay the monthly payments already made or the premiums already waived hereunder."
"If at the end of any policy year the insured shall request in writing the anulment of this provision, the annual premium named in the policy to which it is attached shall be reduced by $8.40."
On July 9, 1924 the complainant was kicked on the leg by a horse and in endeavoring to avoid the kick he struck his back against a *208 wagon and suffered a fracture or dislocation of the coccyx, which is the last bone of the spinal column, formed by the union of four rudimentary or undeveloped vertebrae. By this injury he was disabled from doing any work. On November 25, 1924 he became confined to his bed and remained in bed for more than two years, when he again began to improve and sit up and go about his premises on crutches.
After his injury, the complainant notified the defendant Life Insurance Company of the injury and disability, and after an examination by his family physician the defendant paid to him the disability benefits for four months, as provided in said policies. Then upon examination by physicians he was advised that an operation was the only remedy for curing the disability. Another physician advised him not to have the operation performed, as it would cause a loss of control of the bowels, but that he would ultimately get well. He refused and still refuses to submit to the operation. Upon his refusal the defendant declined to pay further any monthly benefits, on the ground that the disability was only rendered presumably permanent and total by the conduct of complainant in refusing to submit to a minor operation, one which it is insisted is attended with no degree of danger.
The complainant was also examined by Doctors Owsley Manier, G.M. Allison and L.D. Cotton. From the testimony of these and other physicians and surgeons of skill and experience, it appears clearly that when properly performed an operation, using a local anesthetic for removal of the bones of the coccyx, would result in removing the disability, would restore the complainant to health, and would not interfere with the function of the muscles controlling the rectum. It also appears that it is very unlikely that the complainant will ever recover fully without such operation. Of course any operation would be attended with some danger from infection, but when properly performed by a surgeon of skill and experience, and under proper circumstances, this danger would be very small.
It is therefore insisted that the continuing disability of the complainant is not due to the accident, but to his unreasonable refusal to have performed an operation which would restore him to sound condition; that it is his duty thus to prevent any aggravation or continuation of the disability; that upon him is the duty to take such steps to restore himself to sound condition as an ordinarily careful and prudent man would take under such circumstances. The question thus presented is not controlled by the rule applied in cases arising under the Workmen's Compensation Act, for this Act contains in section 25 thereof, a provision which obligates the employer to furnish and the employee to accept such medical and surgical treatment as may be reasonably required. In Sun Coal v. Wilson, *209
"We do not wish to be understood as holding that, under all circumstances, a claimant should submit to an operation when so requested by the employer, but we have not a case here where the operation is serious or dangerous, or where `the physicians disagree as to the advisability of an operation.'"
Nor is this case analogous to that of a plaintiff suing for damages for personal injuries, who refuses unreasonably to submit to a surgical operation, for in such case it is the duty of the plaintiff to mitigate the damages by submitting to such operation, following the advice or instructions of a physician or surgeon. In such case it is generally held that the proximate cause of the injury or disability at present existing, is at least in part the plaintiff's own wilfulness or neglect. See Donovan v. New Orleans Railway Light Co.,
In this case the complainant seeks to recover upon a contract of insurance. This contract contains no provision, express or implied, that in case of injury or disability the insured will submit to a surgical operation. It is probably presumed that the insured, out of a motive of self-protection or self-preservation, would obtain such medical and surgical treatment as would be necessary; but this matter is left open in the contract. It is not the subject of any stipulation. It is a matter which the insured is left to determine for him self; and if he, through apprehension, or for any other cause, has determined that he will not submit himself to an operation, he is under no contractual obligation to do so.
It is well settled that it is against the policy of this State to permit implications in insurance contracts. As to contracts of life insurance it is expressly provided by chapter 441 of the Acts of 1907, section 3275a1 of Shannon's Code, that the entire contract of insurance shall be contained in the policy. Jackson v. Loyal Additional Benefit Association,
The Chancellor also held that the refusal of the defendant to pay the amounts of the benefits after demand had been seasonably made, was arbitrary, and he included in his award a penalty to cover the expenses for services of counsel, etc., which he was forced to incur in instituting and prosecuting this suit. Under the statute, Shannon's Code, sec. 3369a142, a penalty is not recoverable for an unsuccessful defense, if made in good faith. Grain Co. v. Weaver,
Faw, P.J. and Crownover, J., concur. *211