American Life & Accident Ins. Co. v. Nirdlinger

• Citation: 73 So. 875,113 Miss. 74
• Decision Date: 13 February 1917
• Docket Number: 18678
• Parties: AMERICAN LIFE & ACCIDENT INS. CO. v. NIRDLINGER
• Court: United States State Supreme Court of Mississippi

73 So. 875

113 Miss. 74

AMERICAN LIFE & ACCIDENT INS. CO. v. NIRDLINGER

No. 18678

Supreme Court of Mississippi

February 13, 1917

Division A

APPEAL from the circuit court of Lauderdale county, HON. W. W VENABLE, Judge.

Suit by Elizabeth Nirdlinger against the American Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court,

Reversed and remanded.

W. C Sams, for appellant.

The court erred in granting instruction two as asked for by the plaintiff, appellee herein. The contract of Insurance, pages 9 and 10, speaks for itself and by this instruction the jury was excluded from considering the testimony of Dr. Hairston and the testimony of D. Spalding who testified that Estivor Autumnal fever was chronic and was a most malignant type of fever. For it was question of fact to be considered by the jury and should not have been excluded from the jury by instruction two granted to the plaintiff.

The court erred in refusing instructions two and three asked for by the defendant and found in the record. The court, in refusing said instruction two had in mind the case of the Insurance Co. v. King, found in 102 Mississippi 478. This court will readily see that the case at bar is in no sense similar to the King case in 102 Mississippi and that the King case does not control the case at bar.

There are two different clauses in the policy, Exhibit A., record page 10, of the case at bar that have equal weight and bearing in the contract of insurance, to-wit: "E" and "H." The record in this case shows that C. J Nirdlinger suffered from a non-confining illness. This being true, under section "E" of the contract of insurance, record pages 9 and 10, the beneficiary was entitled, as illness indemnity, to only fifty dollars a month, this without considering clause "H" of the said contract which specifies where the disability of illness results wholly or in part from chronic disease, the limit of the company's liability shall be one-fourth of the amount which would otherwise be payable under this policy (which is twenty-five dollars a month) and the limit of the company's liability under this paragraph shall not exceed two months disability. Clearly then, if C. J. Nirdlinger's disability resulted wholly or in part from chronic disease, then the beneficiary would be entitled to only twenty-five dollars a month and for a period of only two months, instead of one hundred dollars a month as provided for in first part of clause E of said contract.

The testimony clearly shows that C. J. Nirdlinger was suffering from chronic malarial fever, or Estivor Autumnal, which was testified to both by Dr. Hairston and Dr. Spalding as being chronic. That being the case, the second instruction asked for by the defendant, should have been granted by the court leaving it with the jury to decide from evidence whether the decease of C. J. Nirdlinger was chronic or not and if it wholly or in part disabled him.

As stated above, by careful reading of the King case in 102 Mississippi, it will be seen that the case at bar is altogether dissimilar, also that the contract of insurance in the King case is entirely different from the contract of insurance in the case at bar. In the King case, clause "E" requires that the insured be continuously confined within the house, and clause "H" comes along and uses the word disabled. Those two terms are taken together and construed by the court in the King case, that the meaning of the clauses taken together, and that the test of the right to recover in that particular policy, depends upon whether he was disabled during the time limit to perform the duties required of him by his employment.

Clause E of the contract of insurance in the case at bar, does not provide that the insured shall be necessarily and continuously confined to his house but "within the house." A discussion of this expressed phraseology is found in the case of Sales v. Massachusetts Protective Association, 70. N.H. 490, 48 A. 1084. In this case, the court holds as follows: "The expression 'to the house' does not mean the same as 'in the house' (within the house). The expression 'to' signifies direction, in, regard to that appurtenant; while 'in' (within) signifies the quality of being interior. Strictly speaking, the contract of insurance herein, see record page 10, it is provided that the insured shall be necessarily and continuously confined within the house and also that the insured shall therein (meaning within the house) be regularly visited at least once a week by a regular qualified physician, etc.

In order to fully meet various holdings of the courts in various states, clause E in the contract of insurance in the case at bar, provides, that if the insured suffers from a non-confining illness, though wholly and continuously disabled from performing any act or duty pertaining to any business or occupation, though not confined within the house and requiring the regular attendance of a physician, the company will pay an indemnity of one-half of the above rate or one-half of one hundred dollars per month, etc.

The decisions of the court are left to rest and depend separately and in each case that comes before them upon each and every contract of insurance, upon the stipulations and terms of each and every contract of insurance that forms the basis of the suit or claim.

The court, in the case of Cooper v. Phoenix Accident and sick Benefit Association, 141 Mich. 478, 104 N.W. 734, holds that where a sick benefit policy provides for allowance while the insured is necessarily, entirely and continuously confined to the house, there can be no recovery for the period which the insured went out for airings, although he acted under his physician's orders. The said court, discusses, in its decision, the holding of Hoffman and Michigan Home and Hospital Association, 128 Mich. 323, 54 L. R. A. 746, and observes the difference in the terms of the policy of the last-mentioned case and the one under its consideration and said: "In the case now before us, the words are 'necessarily, entirely, and continuously confined to the house.' The contract is not one of indemnity for disability caused by felon. It is only when resulting disability is of such nature that the holder of the policy is necessarily, entirely and continuously confined to his house that indemnity is promised. If the provision had been written expressly to meet and avoid effect of the reasoning in the case referred to (Hoffman case), it could not have well been made stronger."

In the case of Bishop v. United States Casualty Company, 99 A.D. 530, 91 N.Y.S. 106, wherein the policy considered insured against disease "Necessitating continuous confinement indoors and treatment by a regular qualified physician," the court said: "It seems clear that the plaintiff would not be entitled to recover the weekly indemnity unless his physical disability was such as reasonable to necessitate continuous confinement to his house and medical treatment. In other words, no matter what the cause of the malady moved upon and no matter what may have totally disqualified him from performing his business, if it did not require him to remain indoors and if the professional services were not reasonable required, it was not within contemplation of the contract that the insured have indemnity, etc."

In the case of Liston v. N. Y. Casualty Company, 58 N.Y.S. 1090, the court held, where the policy provided that no disability shall constitute a claim--where the claimant is able to leave his bed or house . . . nor during any period of convalescence. The court held that no recovery could be had for the time subsequent to the date that the insured left his bed, and out for air and recreation, made a visit out of town for his health, especially where there was evidence that the physician visited him only once.

It is to be observed that clause E of the contract of insurance of the case at bar provides for one-half the usual indemnity where the insured is convalescing or from the time when the illness is non-confining and that part of the clause or any other clause.

In Schneps v. Fidelity and C. Company, 101 N.Y.S. 106, it was held by the court that where the policy provides for payment in case of disability and the necessity of confinement to the house, there can be no recovery unless there is evidence of necessary confinement to the house as well as a disability. To the same effect was Dunning v. Massachusetts Mutual Accident Association, 99 N.E. 390, 59 A. 535.

Where an accident policy provides for benefits when insured is wholly incapacitated from transacting any and every kind of work or business pertaining to his occupation and as results thereto, be confined to the house or bed, he cannot recover benefits after he goes to his store and stands around a couple of hours superintending his business." See Shirts v. Phoenix Accident and Sick Benefit Association, 135 Mich. 439, 97 N.W. 966, which is very similar.

The same case holds that the circumstances in the case of Hoffman and Michigan Home and Hospital Association, were so different from the case under consideration, that the rule as set out in the Hoffman case did not apply. This case seems to be nearer in point with the case at bar than any other case appellant has been able to find.

The insured in the case at bar, as shown by the testimony, went regularly to his place of business, getting there in the morning as early as seven o'clock and remaining there during the most of the day, attending to and superintending his business, though the testimony shows that the insured had a cot in the rear of his office building where he would lie down when his services were not needed in the...