Brandt v. Mutual Ben. Health & Acc. Ass'n

Citation202 S.W.2d 827
Decision Date01 March 1947
CourtSupreme Court of Tennessee

Wm. S. Noble and J. B. Daniel, both of Nashville, for complainant.

David M. Keeble and Walker & Hooker, all of Nashville, for defendant.

FELTS, Judge.

Complainant brought this suit to recover the indemnity for "confining illness" under a health and accident policy issued to him by defendant. The cause was tried before the Chancellor and a jury. Complainant's proof consisted of his testimony and the deposition of his physician. Defendant offered no proof. The Chancellor discharged the jury and decreed complainant a recovery of $150, the maximum provided by the policy for "nonconfining illness."

Complainant appealed in error and insists that the Chancellor should have allowed him a recovery at the rate of $100 per month for "confining illness" from the date his illness began, October 14, 1944, on so long as it continues, not to exceed 24 months, as stipulated in the policy.

Both parties treat the facts as undisputed and, we understand, both agree that there was no issue for the jury and it was proper for the Chancellor to decide the case upon the undisputed facts and the applicable law, and that the only question before us is whether such facts bring the case within the provisions of part "K" or within those of part "L" of the policy.

Part "K" provides an indemnity at the rate of $100 per month, not to exceed 24 months, for disability from disease which "confines the Insured continuously within doors and requires regular visits therein by a legally qualified physician," "provided said disease causes total disability and necessitates total loss of time." Part "L" provides an indemnity at the rate of $50 per month, not to exceed three months, for disability from disease which "does not confine the Insured continuously within doors, but requires regular medical attention," "provided said disease necessitates continuous and total disability and total loss of time."

Complainant is afflicted with coronary thrombosis, a serious disease of the heart. He was stricken in the evening of October 14, 1944, was taken next morning to the clinic of Dr. O. N. Bryan, and from then on till the trial he was under continuous treatment by Dr. Bryan, who was stipulated to be an expert. For the first three or four weeks part of the treatment was absolute rest in bed except for his visits to the doctor's office. Thereafter part of the treatment was to have him take short walks for the fresh air and sunshine and to prevent deterioration of the heart muscles from continuous lying in bed.

During this period complainant was unable to do any work. In his application for the policy he had stated his occupation was a grocer. Dr. Bryan described his condition and expressed the opinion that he was totally and permanently disabled to perform the duties of that occupation or to do any work requiring physical exertion. In its brief defendant concedes he is totally disabled.

Its defense is that he was not confined continuously within doors and regularly visited therein by his physician, as required by the policy to entitle him to the indemnity he claims. At first he went to his doctor's office once every three or four days and later about once a week. In good weather he took short walks on his doctor's advice. After defendant denied liability he came on the bus to town a number of times—once or twice to defendant's office, once to the Insurance Commissioner's office, several times to his lawyer's office, and once to testify in court.

So the question is whether, his total disability being conceded, his claim should be denied because, instead of staying continuously within doors and being there treated, he went out to the extent stated for his treatment and in connection with his claim.

Similar provisions requiring the insured to be "confined continuously within doors," or "confined to his room," or "necessarily confined to bed" have often been before the courts; and while none of them construes or applies such provisions literally, their decisions are by no means harmonious.

Some courts apply such provisions quite strictly, and deny recovery where the insured visits his physician, goes out for fresh air or sunshine or exercise, or leaves his house for any purpose except for an exigency compelling his removal by reason of fire, an order of the board of health, or the like. Sheets v. Farmers' & Merchants' Mut. Life & Cas. Ass'n, 116 Kan. 356, 225 P. 929; Rocci v. Massachusetts Accident Co., 222 Mass. 336, 110 N.E. 972, Ann.Cas. 1918C, 529, second appeal, Id., 226 Mass. 545, 116 N.E. 477, and cases cited in Note 18 Ann.Cas. 1112, 1113.

But the majority of courts construe and apply such provisions liberally in favor of the insured, and hold that his right to recover is not defeated by the fact that he visits his physician for treatment, or goes out on the physician's advice for fresh air or sunshine or exercise, or goes to a hospital or to a different climate for his treatment, or goes out occasionally for other purposes, provided he is entirely incapacitated for work or business on account of his illness. Jennings v. Brotherhood Acc. Co., 44 Colo. 68, 96 P. 982, 18 L.R.A., N.S., 109, 130 Am.St.Rep. 109; Home Protective Ass'n v. Williams, 151 Ky. 146, 151 S.W. 361, Ann.Cas.1915A, 260; Breil v. Claus Groth Plattsdutschen Vereen, 84 Neb. 155, 120 N.W. 905, 23 L.R.A., N.S., 359, 18 Ann. Cas. 1110; Stewart v. Continental Cas. Co., 141 Wash. 213, 250 P. 1084, 49 A.L.R. 960; Lewis v. Liberty Industrial L. Ins. Co., 185 La. 589, 170 So. 4, 107 A.L.R. 286; Annotations, 49 A.L.R. 965, 107 A.L.R. 289; 7 Couch Cyclopedia of Law of Insurance, Secs. 1678, 1681; 1 Appleman on Insurance, §§ 652, 653, 654; 29 Am.Jur.Insurance, Secs. 1171, 1172.

Decisions in this State are in line with this liberal view, and this Court is committed to the rule of a liberal construction of such provisions in favor of the insured. National Life & Accident Ins. Co. v. Armstrong, 21 Tenn.App. 92, 105 S.W.2d 520; Interstate Life & Accident Co. v. Spurlock, 16 Tenn.App. 250, 64 S.W.2d 75; Wilkes v. National Life & Accident Ins. Co., 7 Tenn.App. 36; National Life & Accident Ins. Co. v. Bradley, 6 Tenn.Civ. App. 566.

In the Bradley case, supra, the insured, a laborer, became totally disabled by blindness. But, attended by his wife, he went out "at intervals for the purpose of obtaining medical aid and to attend to necessary business matters or to obtain exercise." Nonetheless he was held to have been "necessarily confined to his room and there visited by a duly licensed physician," under the liberal construction that should be given this provision.

In the Wilkes case, supra, the provision was "necessarily confined to bed"—a stricter requirement, as noted by Judge Senter, than "confined to his room." The insured was totally disabled by paralysis of his legs. He was otherwise in perfect health. He could use crutches and, with the aid of an attendant, could go wherever he chose. In these circumstances the court held he was not "necessarily confined to bed," but indicated he was substantially "confined to his house." The court approved the decision in the Bradley case, supra, and quoted approvingly from the Breil case, supra (84 Neb. 155, 120 N.W. 905, 23 L.R.A., N.S., 359, 18 Ann.Cas. 1110): "`Within the meaning of an insurance contract for sick benefit, it cannot be said that an assured is not confined "constantly to the house" during an illness characterized by recurring periods of severity, although at intervals he may occasionally step into his yard, or make visits to his physician or other short and unusual trips, the assured at all times being unable to resume the ordinary duties or pleasures of life.'"

In the Spurlock case, supra, 16 Tenn. App. 250, 64 S.W.2d 75, 77, the provision was "necessarily confined to bed" etc. The insured had cataracts on his eyes. After an operation on one of them he could see "enough to go about with a stick," but not well enough to work. It was stated that "in fact, he does not contend that he is confined to his bed." So it was held he could not recover.

The Armstrong case, supra, 21 Tenn.App. 92, 105 S.W.2d 520, our last one on the question, involved the stricter provision— "necessarily confined to bed" etc. The insured was afflicted with encephalitis which totally disabled him. But by the use of hyoscine, administered in form of a hypodermic three times a day, he could walk normally while the effects of this drug lasted, and could visit his doctor's office and go about town unassisted. But it was held he was...

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