Eller v. Paul Revere Life Ins. Co., No. 45111.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 291 N.W. 866,228 Iowa 1247
• Parties: ELLER v. PAUL REVERE LIFE INS. CO.
• Docket Number: No. 45111.
• Decision Date: 07 May 1940

228 Iowa 1247
291 N.W. 866

ELLER
v.
PAUL REVERE LIFE INS. CO.

No. 45111.

Supreme Court of Iowa.

May 7, 1940.

Appeal from Municipal Court, City of Des Moines, Polk County; Don Allen, Judge.

Action at law to recover weekly indemnity under an accident insurance policy for a five months period of claimed total and continuous disability, from March 21, to August 21, 1938. The plaintiff has appealed from a judgment on a verdict by a jury for the defendant.

Affirmed.

[291 N.W. 868]

C. B. Hextell, of Des Moines, for appellant.

Mills, Hewitt & Diltz, of Des Moines, for appellee.

BLISS, Justice.

[1] The plaintiff is an attorney past sixty years old who has practiced his profession in Des Moines for over half that time. In 1934, the defendant issued to him the policy sued upon, insuring him against loss from bodily injuries effected directly and independently of all other causes by accidental means. The indemnity provided for was $100 a month, with an additional amount in the event of hospitalization. The defendant paid indemnity of approximately $1,400, up to March 21, 1938, and refused to make further payments. Plaintiff's substituted petition alleged that on the morning of January 21, 1937, he accidentally slipped and fell upon an icy sidewalk, and thereby sustained the following injuries: The breaking of his right 9th and 10th ribs, bruises about head, torn and sprained ligaments in the neck, injured articulating facets and processes and lamina bones between the vertebræ of his neck, and a fracture of right facet and processes or lamina bone between third and fourth vertebræ so as to cause pressure on the spinal cord nerves passing out through said vertebræ, and a fracture of the 6th cervical and upper dorsal vertebræ, an injury to the occipital bone, a cerebral insult and a concussion. The petition further alleged: that, due to said injuries, the plaintiff, since the date of said accident, had been continuously and totally disabled from engaging in any gainful occupation and had required the regular and personal attendance of licensed physicians, and that he would be thus totally disabled for an unknown and indefinite period; that he had been confined in a Kansas City hospital, in 1938, from April 5th to the 25th, May 11th to the 17th, and July 1st and 2nd; that there was due him, under his policy, $200 for March 21 to April 21, $200 for April 21 to May 21, $100 for May 21 to June 21, $200 for June 21 to July 21, and $100 for July 21 to August 21, all in 1938. The defendant filed an answer in three divisions. In each there was a general denial, an admission of the issuance of the policy, and the payment of total disability payments up to March 21, 1938. In division one, defendant denied the alleged disability between March 21st and August 21, 1938. In division two, it denied such disability between July 21st and August 21st, and in division three, it denied such disability between August 1st and August 21st. Plaintiff filed a motion to require the defendant to elect on which division it would stand, and as alternative relief, that the last two divisions be stricken. The relief was denied and we find no error in the rulings.

[2] The trial began on the morning of March 9, 1939, and closed in the afternoon of March 15th, following. The plaintiff was on the witness stand over a day, and in addition to testifying, actively participated in the trial, by advising his attorney respecting questions to be asked and objections to be made, by citing law to and arguing with the court, and by controversy with opposing counsel. By words and action he sought to convey to the jury that he was still suffering grievously as a result of his accident. He put one of his attending doctors on the witness stand, and read the deposition of his attending doctor in the Kansas City hospital. Their testimony supported, in general, the claims of plaintiff. From the testimony of the plaintiff and others, it appeared that plaintiff had been to the Mayo Clinic at Rochester, to Dr. Steindler at Iowa City, and to several other doctors, but no testimony was introduced from these sources, except as it was indirectly given by the plaintiff. The defendant used eleven doctors as witnesses. Dr. Price and Dr. Harnagel, at the request of the Preferred Accident Insurance Co., which was resisting an indemnity claim based on this accident, examined the plaintiff, at his home, on June 24, 1937. Without going into detail, we may fairly say that their testimony, based upon their examination of plaintiff, and of X-rays of his person, disclosed nothing of disabling nature as a result of the accident. Dr. Leir, a specialist in the taking and reading X-rays, on March 7, 1937, less than six weeks after the accident, took X-ray pictures of the alleged injured parts of plaintiff, and testified that they showed the parts to be normal, without any displacement or misalignment of the spine or any of the vertebræ thereof, or any evidence of there ever having been any fractures or crushing of any of the vertebræ or the

[291 N.W. 869]

facets thereof. He also examined the X-ray pictures taken at the Kansas City hospital, about March or April, 1938, and testified that while the light was not plain enough to show any fractures, the position and alignment of the cervical spine and vertebræ seemed normal. Dr. Burcham, another such specialist, took X-rays of the plaintiff on March 24 and 26, 1938. His testimony corroborated Dr. Leir's. He found no displacement, misalignment or fractures of any of the vertebræ, and testified that if there had been any fractures, the pictures would have disclosed them. He also examined the Kansas City X-rays, and testified that they showed no evidence of displacement, misalignment or fractures of the cervical or dorsal vertebræ, complained of, or of any of their facets. Dr. Henry, a specialist in nervous and mental diseases, Dr. Wirtz, an orthopedic surgeon, or bone specialist, Dr. Royal, a general physician, all appointed by the court, on application of the defendant, to make the examination, with the aid of an X-ray technician, examined the plaintiff, on February 5, 1939. He gave them an oral and written history of his case. Dr. Henry testified that the X-ray plates taken showed no abnormalities, no fractures, lack of alignment or slipping of the vertebræ, or evidence of prior injury. One picture showed a little arthritis, but there was no suggestion that it was traumatic. He testified that the actions and complaints of the plaintiff were of such a nature as to indicate that he had developed a psychoneurotic mental state with reference to his injury so that it dominated his mental attitude or outlook after the physical effect of the injury had passed. He also testified that he had developed a mental attitude known as the “security of disability”, that is a sense of security based upon what his disability promises or produces for him, in the way of medical attention or financial remuneration, making him feel incompetent to go back to work, and giving him a feeling that the safer thing for him is to hold on to these things. In other words that the disability he has has become his feeling of security.

Dr. Wirtz gave like testimony respecting what the X-ray pictures disclosed. He further testified: “I could not find any objective symptoms of any injury-all symptoms were his history and subjective. I examined is neck. I found no lumps. The physical contour of his neck was normal-no spasticity of the neck muscles. I could not find any restriction of motion of his neck. It was free up and down and sidewise. I couldn't find any evidence of nerve injury, and no muscle spasms. He was well nourished, Chest developed. Examination showed nothing abnormal. I find nothing wrong with the facets nor alignment or side slipping of the vertebræ. I made the statement after examining this man that I had arrived at the conclusion he had developed a mental condition that caused him to feel that he had an incurable condition or injury, or at least one that no one could diagnose or cure. As a result of this mental attitude, I felt he seemed to picture his symptoms worse than they really were.” Dr. Royal was unable to testify. Dr. Ely, a specialist on mental and nervous diseases, basing his answers solely on hypotheses, testified: “I would be justified in assuming that the man had a traumatic hysteria. It is a condition, a state of mind in which an individual as the result of something which precipitates or forms an occasion or nucleus for its origin, begins to believe he has certain physical defects or injuries or...