Brittain v. Prudential Ins. Co. of America

• Decision Date: 30 June 1939
• Docket Number: 7 Div. 460.
• Citation: 191 So. 794,29 Ala.App. 57
• Parties: BRITTAIN v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Alabama Court of Appeals

191 So. 794

29 Ala.App. 57

BRITTAIN v. PRUDENTIAL INS. CO. OF AMERICA.

7 Div. 460.

Court of Appeals of Alabama

June 30, 1939

Rehearing Denied Oct. 3, 1939.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action to recover accident benefit under a group policy of life insurance by Jonas Brittain against the Prudential Insurance Company of America. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Certiorari denied by Supreme Court in Brittain v. Prudential Ins Co., 7 Div. 600, 191 So. 800.

Chas. F. Douglass, of Anniston, for appellant.

Harsh, Harsh & Hare, of Birmingham, for appellee.

BRICKEN, Presiding Judge.

Plaintiff brought his suit against the Prudential Life Insurance Company of America, in the Circuit Court of Calhoun County Alabama. The defendant interposed a demurrer to the complaint which was sustained by the court below. The plaintiff took a nonsuit and brings this appeal to review the judgment of the lower court sustaining said demurrer.

It appears from the complaint and exhibits thereto, which were made a part of said complaint, that the Louisville &amp Nashville Railroad Company made applications to the Prudential Insurance Company of America for a group policy of insurance to insure the lives of certain classes of the employees of said Railroad Company, who were engaged in the business of railroading. In addition to the life insurance applied for, each of said employees, with continuous service of three months, or more, was to be insured against death by accidental means and loss of any two limbs or eyesight in an amount equal to the full amount of insurance (one half such amount in event of loss of one limb or the sight of one eye); in different amounts, according to the class of the employee. It was provided in said application that the policy applied for should be subject to the provisions of said policy. The application was dated December 22, 1931.

The Prudential Insurance Company issued a group policy of insurance, No. G--3688, to said Railroad Company, dated January 1, 1932, insuring the lives of the employees of the Railroad Company, of said designated classes, including Jonas Brittain, plaintiff in the court below and appellant here, subject to the provisions of the second and third pages of said group policy, one of which said provisions declared in substance that if any of said designated employees of said Railroad Company, while in the employ of said Railroad Company, should lose one foot, as the result, directly and independently, of all other causes, and effected solely through external, violent and accidental means, and occurring within ninety days of the accident, the Insurance Company, defendant in the court below and appellee here, would pay to said employee a specified disability benefit (graduated according to the class to which the employee belonged and in the case at bar amounting to the sum of one thousand dollars), immediately upon receipt of due proof of such impairment. It was expressly provided by said policy that "Loss of hands and feet shall mean loss by severance at or above the wrist or ankle, etc." Said group policy also provided that the Insurance Company "will issue to the employer for delivery to each person insured under this policy an individual certificate setting forth the insurance protection to which such person is entitled hereunder and to whom such insurance is payable, etc.," and accordingly the Insurance Company issued certificate of insurance, No. 7322, dated January 1, 1932, to said Jonas Brittain, which recited in substance that said Insurance Company had insured the life of Jonas Brittain, employee of the Louisville & Nashville Railroad Company, (1) Amount of life insurance, $2,000.00; (2) Accidental death benefit, $2,000; (3) For loss, by accidental means, as defined in said policy, of both hands--$2,000, both feet--$2,000, one hand and one foot--$2,000, sight of both eyes--$2,000, one hand and sight of one eye--$2,000, one foot and sight of one eye--$2,000, sight of one eye--$1,000, one hand--$1,000, one foot--$1,000. Immediately following, in somewhat smaller and lighter shaded print it is true, but so arranged as to arrest and attract attention, is the provision--"Loss of hands and feet shall mean loss by severance at or above the wrist or ankle, etc." This certificate begins with the declaration that the Railroad Company had entered into a contract with the Insurance Company, "whereby, in accordance with and subject to the terms and conditions of its Group Policy No. G--3688, issued by said Company, etc." It therefore is made to appear to this Court, because the application for insurance, the group policy and the certificate of insurance are all made a part of the complaint filed in the court below, that any one in possession of the certificate of insurance knew that said certificate was issued subject to the terms and provisions of the group policy and that loss of a foot as specified in the certificate meant loss by severance at or above the ankle.

The complaint which was filed in the court below contained 7 counts, numbered from 1 to 7, each inclusive, and is founded upon said certificate of insurance and said group policy No. G--3688, and under its averments said Jonas Brittain sought to recover from said The Prudential Insurance Company the sum of one thousand dollars for that, as alleged in each and every count of the complaint, said Insurance Company had insured said plaintiff under said certificate of insurance and under said group policy "against the hazard of the loss of foot through external, accidental and violent means, and plaintiff avers that heretofore: On or about December 9, 1935, plaintiff sustained such an injury, the proximate result of which, within the 90 day period, as set out in said policy 'destroyed the internal semi lunar cartilage and the anterior cruciate ligament, substantial parts of the knee and without which his knee would not function, creating a status of constant pain and irritation of adjacent tissues, continuing in aggravation, developing within said period a need for the removal of said parts, the same being removed in surgical operation shortly thereafter, in substantial severance of the knee' or the foot at or above the ankle, permanently destroying the usefulness of said limb."

Count 2 of the complaint is practically identical with count 1 except while count 1 fails to aver that the injury was sustained while the contract of insurance was of force and effect this averment is set out in count 2. And it may here be noted that the allegation of injury to the knee of the plaintiff is practically and substantially the same in all 7 counts of the complaint.

Count 3 of the complaint after setting up the injury received by plaintiff as above quoted and as charged in count 1 avers that said knee injury developed, within the 90 day period, "partial atrophy of the left thigh, of the left calf, swelling of the left ankle, with brownish discoloration of lower left leg, ankle and feet, rendering the leg permanently useless, thereby creating, within said period a condition relievable only through surgical amputation making the same therefore needful as the only means of relief from said condition. Plaintiff therefore avers that within the terms of said policy he lost his foot by severance at or above the ankle within said 90 day period." In other words the averment of this count of the complaint is that an injury to the "semi lunar cartilage and the anterior cruciate ligament" of the knee, developing within 90 days from the injury, a condition relievable only through the surgical amputation of said cartilage and of said ligament, which amputation is by said injury rendered needful, is, in law, a loss of the foot by severance at or above the ankle upon the removal by surgical amputation of said cartilage and of said ligament, although the foot itself is not in fact severed and removed from the leg in said operation. This Court does not find itself in accord with or give approval to this loss of his foot by severance as averred in said count by the plaintiff. If there had been an actual severance by surgical amputation of the left leg of plaintiff at the knee, rendered necessary by the injury, thereby effecting the removal of the foot and lower left leg from the physical person of the plaintiff, a very different question would be presented by the averment of these facts. A question, we may say, not presented by the pleadings in this case.

Counts 4, 5, 6, and 7, each respectively, after averring the alleged injury as above referred to and as set out in count 1 of the complaint, further avers that said injury developed, within said 90 day period, partial atrophy of the left thigh, left calf, swelling of the left ankle, with brownish discoloration of lower left leg, ankle and foot, thereby causing the loss of his said foot within the terms of said policy. What we have said with respect to this averment as set out in count 3 of the complaint applies to said counts 4, 5, 6, and 7 and need not be here repeated.

Counts 4, 5, 6, and 7 of the complaint each concedes that both the certificate of insurance and the group policy, upon which this case is founded, contained the provision,--"Loss of hands and feet shall mean loss by severance at or above the wrist or ankle." And in count 4 this provision is...