Eller v. Preferred Acc. Ins. Co.

• Decision Date: 07 March 1939
• Docket Number: 44545.
• Citation: 284 N.W. 406,226 Iowa 474
• Parties: ELLER v. PREFERRED ACC. INS. CO.
• Court: Iowa Supreme Court

284 N.W. 406

226 Iowa 474

ELLER v. PREFERRED ACC. INS. CO.

No. 44545.

Supreme Court of Iowa.

March 7, 1939

Appeal from Municipal Court of Des Moines; Don G. Allen, Judge.

Plaintiff brought this action for indemnity under an accident insurance policy issued by defendant. From a verdict for the plaintiff defendant appealed.

Affirmed.

Where insured in intermediate proof of claim under accident policy stated that he had been totally disabled between January 21 1937, and February 11, 1937, and in answer to question regarding partial disability state " from the 10th day of February 1937 to the undetermined as yet and maybe totally disabled that is to be determined," evidence authorized finding that payment was made of claim for total disability without prejudice to future claims for either partial or total disability.

Parrish, Guthrie, Colflesh & O'Brien, of Des Moines, for appellant.

A. J. Myers, of Des Moines, for appellee.

STIGER, Justice.

On January 21, 1937, plaintiff, a lawyer, slipped and fell on an icy sidewalk and suffered serious and painful injuries.

On May 27, 1937, he commenced this action on an accident insurance policy issued by defendant to recover indemnity for total disability alleged to have resulted from his injury. Plaintiff alleged in his petition that defendant had paid him the sum of $220 under the terms of the policy on or about February 24, 1937, which payment was without prejudice to additional claims from January 21, 1937, to February 24, 1937, and was without prejudice to any claims from and after February 24, 1937. He further states that there is a balance due him under the terms of the policy of $700 for total disability from February 11, 1937, to May 27, 1937, and hospital indemnity not to exceed the sum of $223.40, and that the action is without prejudice to actions for future indemnity claims.

The defense to the action is that plaintiff has been paid the sum of $220 covering three weeks' total disability at $50 a week and two weeks' partial disability at $25 per week and surgeon's fee of $20, and is not entitled to any further payment on account of total disability under the terms and provisions of the policy because the policy provides that plaintiff can recover only for continuous total disability, and, plaintiff having been totally disabled for three weeks, which period was followed by partial disability, plaintiff can not recover for subsequent total disability.

Defendant further states in its answer that the injuries received by the plaintiff did not, from the date of the accident, and independently and exclusively of all other causes, directly and continuously totally disable plaintiff and prevent him from performing any and every kind of duty pertaining to his occupation. The jury returned a verdict for the plaintiff in the sum of $828.52.

The total disability clause of the policy reads:

" Total Loss of Time If such bodily injury * * shall directly, independently and exclusively of all other causes and within thirty days from date of accident, wholly and continuously disable and prevent

Period Unlimited the Insured from attending to any and every kind of duty pertaining to his occupation, the Company will pay the Insured so long as he lives and is so disabled, the single weekly indemnity aforementioned."

The provision for payment for partial disability is as follows:

" Partial Loss of Time If such bodily injury, independently and exclusively of all other causes, shall, either within thirty days from date of accident or from date of cessation of total disability, continuously disable and prevent the

52 Weeks Limit Insured from performing work essential to the duties pertaining to his occupation, the Company will pay for the period of such disability, not exceeding fifty-two consecutive weeks, a weekly indemnity of one-half of the single weekly indemnity aforementioned."

Defendant's main proposition is that plaintiff filed a claim with defendant for three weeks' total and two weeks' partial disability; that plaintiff's own statements in his proof of claim admitted that the continuity of total disability was broken; that defendant paid plaintiff for three weeks' total and two weeks' partial disability, and, because the policy states that plaintiff can recover total disability only during the time such disability is continuous, he is precluded from claiming future total disability.

Plaintiff's position is that; (1) the sum of $220 was paid to him by defendant for total disability, and (2) such payment was without prejudice to an additional claim for total disability.

In the case of Hoover v. Mutual Trust Life Insurance Co., __ Iowa __, 282 N.W. 781, the accident policy provided that " disability shall be deemed to be total when it is of such an extent that the Insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value" . The court abandoned the rule announced in Lyon v. Railway Passenger Assur. Co., 46 Iowa 631, and adopted the so called " liberal" rule of construction of the words " total disability" and stated this rule in the following language:

" The liberal rule is that the ‘ total disability’ contemplated by a life insurance policy of this character does not mean as its literal construction would require-a state of absolute helplessness; on the contrary, the disability contemplated means, under the liberal rule, inability to do all the substantial and material acts necessary to the prosecution of the business or occupation of the assured or some other business or occupation which he might enter in a customary and usual manner."

Plaintiff was at the Mayo Clinic in Rochester on two occasions during the period from March 22 to April 16, 1937, and in the Iowa Methodist Hospital in Des Moines from May 10 to May 19 and May 25 to June 9. He was under Dr. Steindler's care at Iowa City from June 28, 1937, to July 15, 1937. Dr. Steindler testified in part as follows: " He was first placed in bed with traction applied to the head, and was then supplied with an adjustable steel collar and discharged from the hospital on July 15, 1937 with this collar. He was discharged as improved but not as cured. He is a man of very high-strung nervous system and I am sure he would have a relapse sooner or later if he goes back to work. He must continue to wear the steel collar."

Dr. Steindler also testified to the extreme pain suffered by plaintiff.

Dr. Griffin testified that when he first saw Mr. Eller the first of February, 1937, " my diagnosis was that he had fractured the ninth and tenth ribs and had a tearing of the ligaments of the third and fourth vertebrae, with a crushing of the facettes or the articulating surfaces of the vertebrae on the right side, I advised Mr. Eller to go to Rochester and I afterwards advised him to go to Iowa City. Exhibit ‘ L’ is a head support which I ordered for Mr. Eller to keep the neck from inclining toward the crushed vertebrae, supporting it to prevent a bending toward the affected vertebrae, to keep the head up off the affected parts and to let it fill in instead of absorb."

Plaintiff testified that " during the first five weeks I never slept a wink and I would just fall from exhaustion, and after that I got a little sleep when I was walking the floor so that I would fall over exhausted and I never got any sleep of a natural nature until I went to Iowa City on the 28 of June and they put me in traction."

Plaintiff went to his office, but because of pain and the nature of his injury, he could not carry on his business. Plaintiff was not only unable to perform all of the substantial and material acts necessary to the prosecution of his business but was unable to perform any of the substantial and material acts necessary to the prosecution of his business. So, in fact, plaintiff was continuously and totally disabled from the time of his injury to a period beyond May 27, 1937.

The next question to determine is whether plaintiff, by filing his intermediate report and proof of claim, Exhibit " C", and accepting the draft for $220 under the circumstances hereinafter shown, precluded himself from claiming additional total disability.

Defendant states that the court erred in overruling the defendant's motion to withdraw from the consideration of the jury all claims for total disability under the terms of the policy, Exhibit " A", and in overruling the defendant's motion to direct the jury to return a verdict for the defendant upon the question of total disability under the terms and conditions of the policy, Exhibit " A" .

Defendant's position is stated in the following language: " We submit to this court that this is a suit on a contract of insurance, Exhibit ‘ A’, that the parties are bound by the clear and unambiguous terms of the contract; that said contract provides by its express terms that the periods of total and partial disability must be continuous; that the undisputed evidence shows that the plaintiff, on his own election and by his own statement in the Intermediate Report, Exhibit ‘ C’, fixed the date of the termination of his total disability and the date of the commencement of his partial disability; that the defendant acted upon the statements made in the plaintiff's intermediate proof and accepted the same and paid the defendant for a period of four weeks' total disability and a subsequent period of two weeks' partial disability; that the continuity of total disability was admittedly broken by a period of partial disability; that if there is a period of total disability followed by a period of partial disability and afterwards there is claimed to be another period of total disability, there can be no recovery for...