American Bankers' Ins. Co. v. White

• Decision Date: 07 January 1935
• Docket Number: 31455
• Citation: 158 So. 346,171 Miss. 677
• Parties: AMERICAN BANKERS' INS. CO. v. WHITE
• Court: Mississippi Supreme Court

158 So. 346

171 Miss. 677

AMERICAN BANKERS' INS. CO. v. WHITE

No. 31455

Supreme Court of Mississippi

January 7, 1935

Division A

1 INSURANCE.

Language "shall wholly and continuously disable insured from his occupation," or similar words, in policy insuring against total disability, do not require that insured be wholly incapacitated to perform any duty incident to his usual employment or business, but if he is prevented by his injury or illness from doing substantial acts required of him in his business or occupation, or if his physical condition is such that ordinary care and prudence require that he cease all work, insured is "totally disabled."

2 INSURANCE.

Evidence as to total disability of housewife suffering from injury to eyes, within health and accident policy, held for jury.

3 INSURANCE.

Physician's testimony that he had not seen insured professionally every week while she was alleged to have been totally disabled, but that insured lived next door to him and he saw her constantly at his home, held not to establish compliance with indemnity condition of health and accident policy requiring insured to be under professional care and regular attendance of physician at least once every seven days.

4. CONTRACTS.

Generally, where clause in contract does not violate any statute or public policy, and is unambiguous and certain in its provisions, it is enforced as written.

5. INSURANCE.

Rejection of claim under health and accident policy on ground of failure to submit timely proof of loss did not relieve insured from performance of condition of policy relative to care and regular attendance of physician during period of disability.

6. INSURANCE.

Insured held not estopped to claim benefits under health and accident policy because proof of loss allegedly failed to show total disability, where insurer did not rely on proof of loss, but denied liability on another ground.

7. APPEAL AND ERROR.

Where judgment for insured was reversed because of failure to prove compliance with condition of policy requiring professional care and attendance of physician at least once every seven days, case would be remanded, where proof showed that insured was under physician's care to some extent and insurer did not request peremptory instruction.

HON. HARVEY MCGEHEE, Judge.

APPEAL from the circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Action by Mrs. Velma White against the American Bankers' Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

J. M. Morse, of Poplarville, for appellant.

The disability as proven by the appellee and her witnesses, the appellant having none, was insufficient to carry the case to the jury on the question of total and permanent disability.

This case does not arise to the dignity of the cases of Metropolitan Life Ins. Co. v. Cato, 113 Miss. 283, 74 So. 117; Mutual Benefit Life Ins. Co. v. Mathis, 142 So. 494; National Life & Acc. Ins. Co. v. King, 59 So. 807; American Life & Acc. Ins. Co. v. Nerlinger, 37 So. 875, 13 Miss. 74; Insurance Co. v. Jones, 112 Miss. 506, 13 So. 566; New York Life Ins. Co. v. Bush, 128 So. 565, 127 Miss. 571.

In all of those cases the insured had such a disability as prevented him from doing the essential things of his avocation. Here, the only two things which the appellant stated positively that she had to do were cooking and house-cleaning, and both she and the physician, even on the trial of the case, testified that she could do them.

The court granted to the appellee an instruction which assumes that there was evidence showing that the injury was continuous, between the date of the injury and the date of the filing of the declaration, when there was no testimony at all to support this instruction.

Southern Ry. Co. v. Lanniere, 83 Miss. 161, 35 So. 417; Brewster v. Illinois Railroad Co., 84 Miss. 33, 36 So. 142; Railroad Co. v. Harris, 108 Miss. 574, 67 So. 54; Godfrey v. Railroad Co., 101 Miss. 565, 58 So. 534; Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616.

Courts must give these contracts a reasonable interpretation, an interpretation that will stand the test of honesty of purpose in their meaning, and will square the transaction between the parties in the making of the contract with some valuable object in contemplation at the time.

Equitable Life Ins. Co. v. Sesenio, 124 So. 485, 155 Miss. 515.

The court ought to have confined the issue to the rate of one hundred dollars a months, from the date of February 9, 1932, to the date of March 15, 1932, and then possibly she would have been entitled to have the case go to the jury on the question of the three months partial disability of forty dollars a month.

The court will not attempt to make a contract for the parties.

Bullock v. Brown, 93 Miss. 104, 46 So. 137.

Hathorn & Williams, of Poplarville, for appellee.

Appellee was entitled to a peremptory instruction.

Mutual Benefit Health & Accident Assn. v. Mathis, 142 So. 494.

Under the facts in the case appellee was clearly entitled to have her case submitted to the jury.

New York Life Ins. Co. v. Bain, 152, So. 845; Equitable Life Assurance Society v. Serio, 155 Miss. 515, 124 So. 485; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; Metropolitan Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Mutual Benefit Health & Accident Assn. v. Mathis, 142 So. 494; Metropolitan Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Shipp v. Metropolitan Ins. Co., 146 Miss. 18, 111 So. 453; Travelers' Ins. Co. v. Plaster, 98 So. 911; Carnelious v. Louisiana Industrial Life Ins. Co., 138 So. 533; Crowe v. Equitable Life Assurance Society, 154 So. 53.

The question as to whether the sworn testimony of Dr. Davis and Mrs. White or these unsworn statements should be accepted as true was a matter exclusively for the determination of the jury.

28 R. C. L., par. 242, page 657; Walters v. Cotton Mills Co., 101 So. 495; Natural Gas Corp. v. Bazor, 137 So. 788; Stovall v. Banks, 8 S. & M. 305; Burrill v. Rau, 121 So. 118; Miss. Power & Light Co. v. Smith, 153 So. 376; Newton v. Homochitto Lumber Co., 138 So. 565.

We submit that a construction of a policy of this kind which would require an insured, even though he was totally and permanently disabled within the meaning of the policy, to visit a physician every seven days would be unreasonable in the extreme and in conflict with the decisions of this court and other courts.

Argued orally by J. M. Morse, for appellant, and by E. B. Williams, for appellee.

OPINION

McGowen, J.

Appellee recovered a judgment against the appellant for two thousand four hundred dollars, for the period of twenty-four months at the rate of one hundred dollars a month, on a policy of insurance issued to her, insuring her against total disability caused from accident or disease. On the 9th day of February, 1932, appellee was standing on one of the sidewalks adjacent to one of the streets in the city of New Orleans, watching a carnival crowd, when some object, accidentally thrown by one of the revelers in the crowd, struck her in the eye, bruising and injuring the same. She returned to her home, Poplarville, Mississippi, and on the next day consulted her physician, Dr. Davis, and remained under his care and treatment until the date of the trial.

The testimony shows that the vision in appellee's right eye, the one injured, was less than one-fourth of normal, and that of her left eye was two-thirds of normal. The proof shows that from the date of the injury until the date of the trial she continued to suffer from both of her eyes, and that frequently she suffered from hemorrhages from her nose. Her occupation was that of a housewife, performing the usual duties in connection therewith, and while her eye was in this condition she did some sewing, occasionally mending a garment, and helped with the cooking. She testified that the performance of such duties produced nervousness, pain, sick headaches, and often hemorrhages from her nose. Her language in this connection was that to engage in her usual household duties caused discomfort to her; but we think the discomfort alluded to was the severe pain caused by sick headaches.

An expert testified that she was totally and permanently disabled, and that to attend to any of the usual household duties was injurious to her eyes, and that she should not perform them; her attending physician, Dr. Davis, testified to the same effect.

It was shown by the attending physician of appellee, on April 16, 1932, that a statement was made by him, on a blank form furnished by the appellant insurance company, that appellee was partially disabled; that she could cook, but could not sew or read; and that a form was also furnished to the appellee, which she filled out and signed. His testimony is to the effect that while she was totally disabled at that time, if she could do anything, he was of the opinion that she could recover only as for partial disability. In answering the following questions, he testified as follows:

"Q. You haven't seen her professionally every week during that time have you doctor? A. I couldn't say for sure I have; I have seen her oftener than that sometimes but what you would probably call 'calls' may be I haven't.

"Q. I mean professionally as a call? A. There's hardly ever a week that we haven't--that is there's hardly ever a week that she didn't complain about it.

"Q. She lived right next door to you? A. Yes.

"Q. You would drop over and see them; you were constantly in each other's house weren't you? A. Well, I don't think there was a week that passed that she didn't complain with the eye."

The proofs executed by the appellee and Dr. Davis were forwarded to the...