Cody v. John Hancock Mut. Life Ins. Co.

• Decision Date: 09 February 1932
• Docket Number: (No. 7124)
• Citation: 111 W.Va. 518
• Parties: Andrew D. Cody v. John Hancock Mutual Life InsuranceCompany
• Court: West Virginia Supreme Court

111 W.Va. 518

Andrew D. Cody

v.John Hancock Mutual Life Insurance Company

(No. 7124)

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1932.

Decided February 9, 1932.

Insurance

A party who carries insurance against physical disability must, as a general rule, in order to minimize disability which has overtaken him, submit to treatment to which a reasonably prudent man would ordinarily submit. Where the facts are plain or undisputed, such party's failure to follow advice of competent physicians as to the course he should pursue in correcting his ailment, such advice being reasonable and proper, precludes him as a matter of law from recovering of the insurer for total disability subsequent to a time when it could reasonably have been expected that his condition would have been substantially improved had he acted promptly on the medical advice which he received.

Error to Circuit Court. Ealeigh County.

Action by Andrew D. Cody against the John Hancock Mutual Life Insurance Company. Judgment in favor of the plaintiff, and the defendant brings error.

Reversed and remanded.

File, Goldsmith d; Scherer, for plaintiff in error. Warren A. Thornhill, Jr., and Dillon, Mohan & Holt, for defendant in error.

Maxwell, Judge:

The plaintiff obtained verdict and judgment against the defendant for $2,910.95. Writ of error followed.

The suit is predicated on a total disability and waiver of premium clause of a life insurance policy. The amount of the verdict and judgment represents the full claim of plaintiff for the sum of $250.00 per month (being 1% monthly of the amount of the policy, $25,000) and premiums paid by plaintiff on his policy, both with interest, during the eight month's period of May, 1930, to January 10, 1931.

An assignment of error goes to the action of the trial court permitting two physicians who had examined and treated the plaintiff to express their opinion, in response to questions propounded by counsel for plaintiff, that during the period aforesaid plaintiff was unable to perform in customary manner the duties necessary to the prosecution of any occupation or employment for wage or profit. It is urged that this expression of opinion by the physicians was an invasion of the province of the jury. We cannot share that view. The plaintiff was suffering from toxemia. Obviously, that is not a matter about which laymen are advised. It was therefore proper not only for the physicians to testify as to the nature of the disease but as to its effect on the patient during their period of observation. In dealing with such matters it would be extremely difficult, if not impossible, for physicians to make clear to the jury just the characteristics of the disease and its effects. If the patient had been suffering from a broken leg the situation would be different; the nature of the injury and the resultant incapacity of the patient to perform gainful duties would have been obvious.

Another point of error pertains to the testimony of William Miller who was chauffeur for the plaintiff part of the time during which he claims he was suffering from total disability. Certain conduct of the plaintiff within that period was sought to be shown. This related to his rather frequent trips to other cities with a female companion; that they would stay at hotels several days at a time; that on such occasions the plaintiff did not use a cane or limp as he did at home. This testimony was proper and in our opinion the trial court erred in indicating to the defendant that the testimony with reference to plaintiff's conduct with the female companion would not be admitted. But, it appears from the record, that following a statement by counsel out of the presence of the jury as to what he expected to prove in the respect mentioned, the court stated to counsel for defendant: "You can go ahead and ask the questions and I will rule on them when they come." If a sufficiently full development of the facts was not thereafter brought out by counsel in interrogating the witness we cannot say that the responsibility therefor rested upon the trial court, for, seemingly, counsel was then permitted to propound to the witness such questions as he desired.

A third point of error presents the soundness of plaintiff's instruction No. 1 given to the jury over the objection of the defendant. This instruction sets forth at some length provisions of the insurance policy with reference to the monthly sum to be paid the plaintiff in the event of total disability, and waiver of premium during such period. The instruction proceeded:" And you are further instructed in this eon- nection that the total disability contemplated by this policy does not mean a state of absolute helplessness, but means the inability to do substantially all of the material acts necessary to the prosecution of any occupation or employment for wage or profit in substantially the customary and usual manner in which such occupation or employment for wage or profit is prosecuted." This explanation of what is meant in insurance policies by the expression '' total disability'' seems sound and reasonable. "Total disability" is of course a relative expression. It does not mean absolute incapacity, mental or physical. The phrase must be construed rationally and practically. This, the instruction did. 14 Ruling Case Law, page 1316; 5th Supplement (idem), page 3810.

The most serious question presented on the record is this: Is the plaintiff estopped from recovery because of his delay in taking proper treatment for his ailments after having been advised by competent physicians as to what he should do? The facts in detail are these: On April 17, 1930, he first consulted his physician, who, after a thorough physical examination, informed plaintiff that he was suffering from a toxic condition of the blood and advised him to consult a dentist regarding a diseased condition of his gums and infected teeth and a specialist concerning the removal of diseased tonsils. The physician then prescribed treatment and placed him on restricted diet, This same physician, after another examination about May 1, 1930, again advised him that he would have to have "something done with his teeth and tonsils, that they were probably responsible for his feelings." July 19th, plaintiff first visited a dentist who, after an X-ray examination, informed him that a lower molar was badly abscessed and should be removed. Plaintiff's gums were treated for the first time Januray 22, 1931. His tonsils were removed in the same month, and one of them was found to be badly infected. He did not have his tooth extracted until February 16, 1931. Plaintiff's physician, and another who examined him subsequent to the removal of his tooth and tonsils, stated that his condition had improved.

Was it plaintiff's duty in the premises to have the infected tooth extracted, the diseased gums treated and the diseased tonsils removed promptly or could he postpone acting on the advice of his physician and claim disability benefits under the policy for an indefinite period? No cases directely in point are cited, and we find none. Decisions in tort actions and workmen's compensation cases are closely analogous to the ease at bar. It is the general rule in both of those classes of cases that the claimant must act reasonably to minimize the disability.

In actions of trespass for personal injuries, the courts hold that a plaintiff should submit to a simple operation, which prudent men ordinarily would undergo under such circumstances, by way of reducing damages. In the case of McCaffrey v. Schwartz, 285 Pa. 561, 132 Atl. 810, the court held that the evidence warranted an instruction that as plaintiff's injured shoulder had developed adhesions which restricted the use of his hand, he should submit to an operation, under an anaesthetic, and permit the adhesions to be forcibly broken, to reduce damages. The case of Leitzell v. Del., L. & W. Ry. Co., 232 Pa. St. 475, 81A. 543 48 L. R. A. (N. S.) 114, holds similarly as to probable permanent knee injury. In Cero v. Oynesando, (R. I.) 138 Atl. 45, it was held that plaintiff must submit to an operation for removal of a traumatic cataract in reduction of damages for personal injuries; in ...