American Liability Company v. Bowman

• Decision Date: 30 January 1917
• Docket Number: 9,139
• Citation: 114 N.E. 992,65 Ind.App. 109
• Parties: AMERICAN LIABILITY COMPANY v. BOWMAN
• Court: Indiana Appellate Court

114 N.E. 992

65 Ind.App. 109

AMERICAN LIABILITY COMPANY v. BOWMAN

No. 9,139

Court of Appeals of Indiana

January 30, 1917

Rehearing denied June 22, 1917.

From Madison Circuit Court; Charles K. Bagot, Judge.

Action by Linies E. Bowman against the American Liability Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Kittenger & Diven, for appellant.

Albert H. Vestal, for appellee.

FELT C. J. Ibach, P. J., Dausman, Caldwell, Batman and Hottel JJ., concur.

OPINION

FELT, C. J.

On July 12, 1913, appellee began this suit against appellant on a health and accident insurance policy. The issues were formed by a complaint in one paragraph answered by a general denial. A trial by the court resulted in a judgment for appellee in the sum of $ 240, from which this appeal was taken. Appellant has assigned as error the overruling of its motion for a new trial and separate error on each of the five conclusions of law stated upon the special finding of facts duly made by the court.

The complaint, in substance, charges that on September 7, 1910, appellee applied for and obtained a policy in appellant company, whereby it promised, in the event of bodily injury resulting through external, violent and accidental means, to pay appellee forty dollars per month, so long as he should be prevented from performing his ordinary business by reason of such injuries; that he complied with all the provisions of the policy so issued to him, and on November 17, 1912, while the policy was in force, he received a personal injury which was caused by the slipping of a ladder on which he was working, whereby he was thrown ten feet to and upon a cement floor, causing an injury to his back, side and spine; that by reason of such injuries he was prevented from following his occupation or attending to any work or business continuously from December 27, 1912, and still is totally disabled and prevented from performing any duty pertaining to any business or occupation; that due proof of his disability for the period of six months was furnished appellant and payment was refused. The policy is made a part of the complaint as "Exhibit A' and it is averred that there is due thereon the sum of $ 280 for which judgment is demanded.

The finding of facts follows the averments of the complaint and, omitting uncontroverted statements, is in substance as follows: On September 7, 1910, appellee was an able-bodied man in good health, and in sound physical condition and on that day appellant issued to him a health and accident policy, the substance of which, as far as material here, is as follows:

The policy to be in force until 12 o'clock noon of October 1, 1910, "and for such further periods as the premium paid will maintain this policy in force. * * *

"Total Accident Disability.

"A. At the rate of forty dollars per month, for the period, not exceeding twenty-four consecutive months, that the assured, is totally and continuously from the date of accident disabled and prevented from performing every duty pertaining to any business or occupation, as a necessary result, independent of all other causes, of bodily injuries effected through external, violent and accidental means. * * *

"Illness Indemnity.

"E. At the rate of forty dollars per month for the number of consecutive days (deducting the first week unless continuing twenty-eight consecutive days) that the assured is strictly and continuously confined within the house and therein regularly visited and treated by a legally qualified physician and necessarily totally disabled, by reason of illness having its cause and beginning after this policy has been maintained in continuous force for thirty days; and if, during convalescence following said house confinement, the assured shall be necessarily and continuously disabled from performing every duty pertaining to any business or occupation, and require and receive the regular attendance of such physician, the company will pay him indemnity at one-half of said rate for the period of such convalescence not exceeding four weeks. * * *

"Miscellaneous Provisions. * * *

"2. In the event of disability, due to either accident or illness, wholly or in part caused by or resulting directly or indirectly in or complicated with tuberculosis, rheumatism, paralysis, apoplexy, orchitis, neuritis, locomotor ataxia, lumbago, lame back, strains, sciatica, vaccination, Bright's disease, cancer, dementia, hernia, insanity, or in the event of any accidental injury otherwise covered by this policy resulting in hernia, terminating fatally or otherwise, then in all such cases referred to in this paragraph, the only liability of the company shall be indemnity for a period of disability not exceeding four weeks in any one policy year, anything herein to the contrary notwithstanding. * * *

"6. The company may cancel this policy at any time, without prejudice to the rights of the assured as to any claim then pending, by written notice of cancellation served upon the assured or mailed to the assured at the address herein given, together with the company's check for the unearned portion, if any, of the premium paid.

"7. Indemnity will not accrue hereunder in excess of the time the assured is, by reason of injury or illness, under the professional care and regular attendance of a legally qualified physician or surgeon. If the assured is disabled by injury or illness for more than thirty days, he or his relatives shall as a condition precedent to recovery hereunder, furnish the company every thirty days with a report in writing from his attending physician or surgeon, fully stating the condition of the assured and the probable duration of the disability. * * *

"9. This policy with the schedule of warranties endorsed hereon, contains the entire contract between the parties hereto, and no agent has authority to change it or waive any of the provisions.

"2. That on the reverse side of said policy, in written and printed matter, under the head and title of 'Schedule of warranties,' was endorsed the following language:

"Schedule of Warranties.

"By accepting this policy the assured agrees that each statement in this schedule is material, and warrants each to be true. * * *

"I agree to pay a monthly premium of One and 20/100 Dollars in advance without notice or demand."

The court also found that from the issuance of said policy appellee promptly paid all dues and premiums on same up to and including June 7, 1913; that on November 17, 1912, while working at his usual employment, the ladder on which appellee was standing slipped and threw him to the floor and injured his right side and hip and his back in the region of the crest of the ilium, which injury was accompanied by an external visible bruise and discoloration; that he was thereby totally disabled, immediately after receiving such injury and continuously for about four days; that immediately after receiving the injury appellee was removed to his home and on that day was visited and treated for said injuries in his home by a physician, and at the end of said four days he was still suffering from his injuries and returned to his work; that continuously thereafter, except on Sunday, until December 27, 1912, he went to his work "and attempted to perform his duties under his employment and did perform a great part of said duties; but that his performance of said duties was with great pain and suffering, and there was a considerable portion of said duties he was unable to perform and required the assistance of another man in performing the services, which he, had it not been for said injury, would have been able to perform himself, and did perform himself prior to the receiving of such injury." That on December 27, 1912, the suffering from said injuries became so severe that he was unable to perform any labor, and from that date continuously to the present time--the case was tried in June, 1914--has been wholly and totally disabled from performing manual labor, or pursuing his avocation, or performing any of the duties of his employment, and has been continuously under the care and treatment of a regularly licensed physician; that said injury was entirely received from external, violent and accidental causes, and appellee's disability aforesaid was directly and immediately caused by such injury; that on January 16, 1913, said injury produced neuritis from which appellee has continuously suffered, and by reason of which he has been entirely and totally disabled from performing manual labor as aforesaid, and rendered wholly unable to perform any part of his usual work or to earn any money by his labor; that said neuritis is not an independent disease, but is coupled with and the result of said injury and was wholly caused thereby. The court also finds that on January 7, 1913, appellee notified appellant in writing of said injury, which notice was received by appellant; that later, at request of appellant, appellee sent to the company the statement of his attending physician and filled out the preliminary notice furnished him by appellant, all of which were received by appellant; that on February 21, 1913, appellant called for a second preliminary report, which was furnished it on March 1, 1913, and on March 3, and again on March 8, 1913, appellee sent to appellant another proof of injury made out by his physician, and at appellant's request sent other proofs of injury, and later on had further communications with appellant and sent additional preliminary reports made out by his physician, the details of which are found and set out by the trial court; that on April 1, 1913, appellant called for "Final proof of Illness," and on May 31, 1913, after further correspondence appellee made out proof of his injury...