Dunning v. Mass. Mut. Acc. Ass'n

• Decision Date: 15 December 1904
• Citation: 99 Me. 390,59 A. 535
• Parties: DUNNING v. MASSACHUSETTS MUT. ACC. ASS'N.
• Court: Maine Supreme Court

59 A. 535

99 Me. 390

DUNNING

v. MASSACHUSETTS MUT. ACC. ASS'N.

Supreme Judicial Court of Maine.

Dec. 15, 1904.

(Official.)

Report from the Supreme Judicial Court, Sagadahoc County.

Action by Fred J. Dunning against the Massachusetts Mutual Accident Association. Case reported. Judgment for defendant.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

C. E. Sawyer, for plaintiff.

Franklin C. Payson and H. R. Virgin, for defendant.

WHITEHOUSE, J . This is an action of debt on a policy of insurance against accident and disease, in which the plaintiff seeks to recover the sum of $108, being an indemnity of $12 per week for nine weeks, on account of a disability resulting from iritis. The case comes to this court on report. The policy bears date October 8, 1902.

It is not in controversy that the plaintiff suffered from iritis, or inflammation of the membrane of the eye called the "iris," but it is contended in behalf of the company that his illness was not such as to be comprised in the terms of the policy giving an indemnity for loss arising from disease.

Benefit numbered 13, under the "Health Provisions" of the policy, promises a weekly indemnity of $12 for not exceeding 26 consecutive weeks for loss through any of the extended list of diseases there specified, including "iritis (primary)." But the insured expressly agreed in the application "to accept said policy subject to all of its conditions, agreements and provisions," and the conditions of the policy respecting the "indemnity for sickness" are as follows, viz.: "A disability resulting from sickness or disease in order to constitute a claim, must be continuous, complete and total, requiring absolute and necessary confinement to the house (except as provided under benefit No. 15), and unless the period of total disability under the health provisions shall continue for four or more weeks, no claim shall be allowed for the first seven days' disability, and the sickness or disease shall be such as shall, independently of all other causes, continuously and wholly disable and prevent the insured from attending to any business or duties pertaining to his occupation, profession or other remunerative employment." Benefit No. 15, under the title of "Convalescent Indemnity," provides that, "if the insured has been confined to the house for seven consecutive days and is thereafter permitted to leave the house by the physician in charge, the association will pay one half of the weekly indemnity for sickness, for a period not exceeding two weeks."

It has been seen, however, that the plaintiff is not seeking to recover the convalescent indemnity provided by benefit 15, but the full indemnity provided in benefit 13, under which the "disability from sickness or disease in order to constitute a claim, must be continuous, complete and total, requiring absolute and necessary confinement to the house."

It is contended in behalf of the defense that "absolute and necessary confinement to the house" is made by the contract an indispensable criterion of the disability which will entitle the insured to the indemnity, and hence a condition precedent to the right of recovery in the action.

The plaintiff does not claim that his disability was such as to require "absolute and necessary confinement to the house," or that he was in fact confined to the house continuously during the time for which he asks for indemnity, or during the first seven days, or any other seven consecutive days, of his illness. But it is contended in his behalf that his affliction was such as to "disable and prevent him, continuously and wholly, from attending to any business or duties pertaining to his occupation, profession or other remunerative employment," and that such disability entitles him to the indemnity promised in benefit 13, although not such as to "require absolute and necessary confinement to the house." It is furthermore insisted that there is no case of iritis which in any degree of severity or at any stage of its progress "requires absolute and necessary confinement to the house," and that if this requirement in the policy is to be construed as a condition precedent to the right of recovery, the promise of indemnity for that disease upon such a condition would be entirely nugatory and delusive.

It must be admitted that, if confinement to the house would not be proper treatment for any case of iritis, the two clauses in the policy providing an indemnity for that disease, and at the same time imposing a condition of...