Browning v. Equitable Life Assur. Soc. of the United States

• Decision Date: 29 October 1937
• Docket Number: 5822
• Citation: 94 Utah 532,72 P.2d 1060
• Court: Utah Supreme Court
• Parties: BROWNING v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES

72 P.2d 1060

94 Utah 532

BROWNING v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES

No. 5822

Supreme Court of Utah

October 29, 1937

For opinion on rehearing see 94 Utah 570, 80 P.2d 348.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Dr. Ernest Wallace Browning against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Hurd &amp Hurd, of Salt Lake City, for appellant.

Gustin & Richards, of Salt Lake City, for respondent.

WOLFE Justice. LARSON, Justice, FOLLAND, C. J., and HANSON and MOFFAT, JJ., concurring in part.

OPINION

WOLFE, Justice.

This is a suit by plaintiff to recover indemnity for total and continuous disability in performing any and every duty in plaintiff's profession as an oral surgeon from April 20, 1934, to December 18, 1934, and later by supplemental complaint to March 5, 1935, on a policy issued by defendant to plaintiff on September 23, 1921, providing for weekly indemnity for total and partial disability caused by accident.

On April 19, 1934, Dr. Browning, in a fall, bent back and sprained his index finger on the right hand. The injury was to the soft parts, that is, to the ligaments or fiber thereof, but not the bone. The finger was put in a splint from April 20 to May 15, 1934, during which time Dr. Browning was unable to perform any duties in connection with his profession. From May 15th to June 12th the finger was treated by heat devices and massage. This is the period of dispute, as to whether he was totally or partially disabled. Since it is about this period which the main points of this case turn, we shall at this time omit recital of the evidence in regard thereto, considering it in detail later. From June 12 to August 20, 1934, the finger was again in splints. From August 20th to 28th it was free; from August 28th to September 26th it was again in splints. In October, 1934, plaintiff went to a bone specialist in California and since then has performed no duties pertaining to his profession. Oral surgery takes in extractions of teeth, treatment of all diseases, and lesions of the oral cavity, such as removal of cysts, tumors, treatment of osteomyelitis, reduction of fractured jaws, and removal of infected teeth. The hands and fingers play a most important part and the index finger of the right hand in a right-handed person is the most important outside of the thumb.

On September 23, 1921, defendant issued an insurance policy to plaintiff. The policy contemplated weekly indemnity for disability caused by accident. At this time plaintiff gave his occupation as a dentist. In 1923 the policy lapsed but on June 16th of that year it was reinstated. In his application for reinstatement, plaintiff gave his occupation as "Dental surgeon." An incidental point is made which may at this time be disposed of, that defendant did not know at the time of issuing the policy that plaintiff was practicing oral surgery because in 1921 he made application for insurance as a dentist. The application for reinstatement which apprised defendant in 1923 that plaintiff was practicing oral surgery is a sufficient answer to this contention.

The defendant paid indemnity for the first 60-day period from April 20 to June 18, 1934, inclusive, amounting to $ 307.15 to cover 26 days of total disability ($ 185.72) and 34 days of partial disability ($ 121.43). This was in response to a claim filed on June 23d made out on a blank furnished by defendant and signed by plaintiff, which, in answer to question 8 of the blank, reading as follows: "Date and hour on which you became completely unable to perform the duties of your occupation," stated, "19th day of April, 1934, at 7 o'clock P. M. and again on June 13th, 1934." (Italics supplied.) And which, in answer to question 9 of the blank, reading: "Date and hour on which you were first able to resume any of the duties of your occupation," stated "16th day of May, 1934, at 9 o'clock A. M. until June 13th, 1934." (Italics supplied.) On October 29, 1934, plaintiff filed a further claim on a like blank and to the same questions 8 and 9 answered, respectively, as follows:

"8. Date and hour on which you became completely unable to perform the duties of your occupation? --April 19th to May 20th June 13th to Aug. 20th Aug. 28th to Sept. 26th.

"9 Date and hour on which you were first able to resume Any of the duties of your occupation? --May 21st to June 12th Aug. 20th to Aug. 27th Sept. 26th."

Appended to this claim was the following:

"In explanation of the above dates I have not been able to work every day since Sept. 26th on account of the severe pain. Some days I am not able to do anything on account of the pain. For that reason I am compelled to leave the city and give it a complete rest. I am leaving for San Francisco tomorrow to see a nerve specialist. While there I will also see your Company physician see my finger."

On July 11, 1934, plaintiff wrote defendant in part as follows:

"Thank you for your check for the first 60 days of my disability. I cashed the check before I noticed a mistake in the amount so I am writing to notify you of the change which should be made in the days of partial disability. The first 60 days disability should read, 28 days partial disability and 32 days total disability.

"If you will please refer to my claim and also to the Physician's report, you will find that the accident occurred on April 19th and my finger was placed in a splint until May 16th at which time I went on partial disability. The finger, however, did not heal and on June 13th, I was forced to quit practicing and have been on total disability ever since. It is still in a splint and will be for several days longer which naturally prevents me from doing any operating."

In response to this letter, defendant paid $ 21.41 more on the theory that there were 32 continuous days of total disability preceding the 28 days of partial, instead of as appeared on the first claim for indemnity. Maloney, a witness for defendant, in a deposition testified that he did not notice the second paragraph of the letter of July 11, 1934, or he would not have made this adjustment, and that all he intended to do was to allow 6 days more of total disability in the first 60-day period, added on to the period from April 20th to May 15th. The plaintiff makes a minor point of the fact that such extra payment should be considered as a payment of total disability from June 13th to June 18th, inclusive, it being within the first 60-day period and that by such payment the company recognized that the partial disability period, if any, within the first 60 days did not break the continuity of the total disability period or at least, if so, that the company waived the effect of such interruption. We think the case is solvable on more fundamental principles. These entail a consideration of the law and the evidence.

In order to understand the first issue over which the parties contend, we quote the weekly indemnity provisions of the policy:

"A. If such injuries shall wholly and continuously disable the Insured from date of accident and prevent him from performing any and every duty pertaining to his occupation, the Society will pay for the period of such continuous disability but not exceeding two hundred consecutive weeks the single weekly indemnity hereinafter specified. After the payment of weekly indemnity for two hundred weeks as aforesaid the Society will continue the payment of weekly indemnity of the same amount thereafter so long as the Insured shall be wholly and continuously disabled by such injuries from engaging in any occupation or employment for wage or profit.

"B. Or, if such injuries shall continuously disable the Insured from date of accident and prevent him from performing one or more important daily duties pertaining to his occupation, or for like continuous disability following total disability, the Society will pay for the period of such disability, but not exceeding twenty-six consecutive weeks, a weekly indemnity of one half of the amount payable per week of total disability."

We have italicized the words which have been the subject of court construction and upon which defendant relies to show that the disability must be total and continuous as to not only the profession but any and every duty thereof. The respondent does not question the construction that the total disability must be continuous or that indemnity for total disability cannot be recurrent. Indeed, it would seem the language would permit of no other construction. Irwin v. Travelers' Ins. Co., 243 A.D. 377, 277 N.Y.S. 724; Dietlin v. Missouri State Life Ins. Co., 126 Cal.App. 15, 14 P.2d 331, 15 P.2d 188; Dietlin v. General American Life Ins. Co., 4 Cal.2d 336, 49 P.2d 590; Id. (Cal. App.) 41 P.2d 979; Ruffino v. Metropolitan Life Ins. Co., 154 Misc. 628, 277 N.Y.S. 722; Herold v. Aetna Life Ins. Co. (Tex. Civ. App.) 77 S.W.2d 1060; Massachusetts Protective Ass'n v. Jurney, 188 Ark. 821, 68 S.W.2d 455; Herwig v. Business Men's Acc. Ass'n of America (Mo. App.) 234 S.W. 853; Coburn v. Maryland Casualty Co., 224 Ky. 377, 6 S.W.2d 471; Doyle v. New Jersey Fidelity & P. G. Ins. Co., 168 Ky. 789, 182 S.W. 944, Ann. Cas. 1917D, 851; Johnson v. Travelers Ins. Co., 269 N.Y. 401, 199 N.E. 637.

The respondent contends that under the evidence the continuity of total disability was not broken by the period from May 16th to June 12th, inclusive. And this is the main issue on this part of the case. The court found that as a result of the accident on April 19, 1934, "plaintiff has been unable to operate the joints of said finger or to use the same in the practice of his profession; that as a result thereof, plai...