Federal Surety Co. v. Waite

Citation297 S.W. 312
Decision Date04 June 1927
Docket Number(No. 11822.)<SMALL><SUP>*</SUP></SMALL>
PartiesFEDERAL SURETY CO. v. WAITE.
CourtCourt of Appeals of Texas

Appeal from Tarrant County Court; P. W. Seward, Judge.

Suit by Sadie B. Waite against the Federal Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for appellant.

Frank R. Graves and W. L. Coley, both of Fort Worth, for appellee.

CONNER, C. J.

The appellee, Sadie B. Waite, instituted this suit against the appellant, Federal Surety Company, to recover upon its insurance policy No. A-21717. She alleged that by the terms of the policy the company had agreed to pay the sum of $100 per month for such time as plaintiff should be incapacitated from performing the usual duties of her vocation, and the sum of $50 per month for such time as plaintiff might be partially incapacitated from performing such duties on account of any illness. She specifically averred:

"That while said policy was in full force and effect plaintiff became ill and wholly incapacitated from performing the duties of her vocation and continued such total and partial incapacity for a period of seven months and that by reason thereof defendant became liable to plaintiff and promised and agreed to pay plaintiff the sum of $600."

The appellant company answered by a general demurrer and a general denial and the following special answer:

"Specially answering defendant would show to the court that it has offered to pay plaintiff and has tendered to her, and her attorney, all that she is entitled to under any policy written by this defendant for plaintiff; that defendant has tendered to plaintiff the sum of $146.44, and here now tenders into court the said sum of $146.44, in full settlement of its liability to plaintiff and under the policy described in plaintiff's petition as its No. A-21717."

The trial was before the court without a jury, and the court found that appellee was entitled to indemnity under the terms of the policy at the rate of $100 per month beginning April 5, 1925, and ending September 1, 1925, four months and twenty-five days, aggregating the sum of $483.33, together with interest at the rate of 6 per cent., amounting to the further sum of $32.50. From the judgment so rendered, the insurance company has appealed.

The issuance of the policy, payment of premiums, etc., as alleged by plaintiff, are not disputed; the only controversy being whether the appellee, by her testimony, has brought herself within the terms of the section of the policy upon which the judgment rests. The policy by its terms declares that it is given against loss of life, limb, etc., resulting from a purely accidental event, and —

"against loss of time from sickness which is contracted and begins not less than fifteen days after the date of this policy — all in the manner and to the extent hereinafter provided.

"Part VIII. Indemnity for Illness. — In the event that the insured while this policy is in force shall suffer from any bodily illness, or disease, which is contracted and begins during said time, the company will pay for loss of time necessarily resulting therefrom as follows:

"A. Said monthly illness indemnity for the period of time, not exceeding twenty-four months, during which the insured shall be totally and continuously disabled by such illness, or disease, from performing each and every duty pertaining to his occupation, and shall also by reason of such illness be strictly and continuously confined within the house and therein be under the regular care of a legally qualified physician.

"B. One-half said monthly illness indemnity will be paid for such period, not exceeding two months, as the insured by reason of a nonconfining sickness or by reason of convalescence from a confining sickness shall be totally and continuously disabled from performing each and every duty pertaining to his occupation and shall also be under the regular care of a legally qualified physician, though not confined within the house."

The only evidence offered on the trial was that of plaintiff, consisting of the policy from which we have quoted, and of her own testimony. In substance, she testified that she was a stenographer and had applied for and received the policy of insurance from which we have quoted and paid the premium thereon; that she became ill on April 5, 1925, while the policy was in force; that her illness was a breakdown from overwork, and continued from April 5th until the 1st of September, during which time she was not able to do any work; that the first physician she had with her was Dr. Chase; that "I was incapacitated from performing any of my work of my usual vocation from the 5th of April until the 1st of September. I was confined at home; I was under the care of a physician until the 4th of August, anyway." She further testified that she was in the hospital one week; that after the 1st of September she started to work, but was not able to do more than 50 to 75 per cent. thereof; that she had never been able to go back and do all of her work as she did before her illness.

On cross-examination she testified:

"The doctors removed my tonsils, too; I was at the hospital one day for that; I was there an additional week afterwards. I was never visited by doctors at my house. The doctors wouldn't come to my house to see me. I went to see the doctor. I went to the doctor's office about once a week, and after I left the hospital I went back to the hospital three times a week for two months for treatment. I left the hospital June 4th. Prior to that time I went to see Dr. Chase about once a week, and then from June 4th I went to see Drs. Horn & Ott three times a week for two months. I was in the hospital while I had my tonsils removed, and then my sister took me home and waited on me at my room, and when my sister left I went back to the hospital and stayed there a week. I had to go to town to make these trips to the hospital. After a little while I went to town for other things. After a while the doctor told me to exercise. Dr. Chase told me that, while I was being treated by him, I did go out and walk around a little bit — not very much. Then after I came out of the hospital I was going to town three times a week to see the doctor. I did not go to town for other things; that is, only to change cars. I had to go to town to change cars to go to the hospital. I didn't do any running around town. I didn't make a trip to Dallas during that time. When I came to town, if I had a prescription, I would have it put up, and I stopped to eat my lunch — change cars right near there where the café was, and where the drug store was. I didn't go around any of the department stores; not until later. As I got my strength I went around more. I began to get stronger when I left the hospital, but I didn't run around town when I first left the hospital. I can't tell you just what date. I had made other errands, but when I first left the hospital I didn't run around town any. I left the hospital the 4th of June. Prior to the time I left the hospital I had gone out on the advice of Dr. Chase. I had gone out walking around prior to the time I went to the hospital. And I had gone to see Dr. Chase and visit him in his office."

It was admitted that the defendant had tendered to the plaintiff and into court the sum of $146.44.

The fact that appellee was wholly incapacitated during the period alleged from performing each and every duty pertaining to her occupation is not disputed, but appellant's contention is that the evidence fails to show that she was "strictly and continuously confined within the house and therein be under the regular care of a legally qualified physician," and hence is not entitled to recover under section A of the policy, quoted above, but is only entitled to recover under the terms of section B of the policy, as quoted. In compliance with which and in satisfaction thereof, its tender of payment had been made.

On the contrary, appellee's contention is to the effect that the policy construed as a whole protected her from loss of time resulting from illness so that she could not perform the duties pertaining to her occupation, and that the reason and spirit of the contract is that, for the premium paid, if appellee became totally and continuously disabled, by reason of illness and disease from performing her duties as stenographer, she should be paid for that time, by the appellant, $100 per month. In support of appellant's contention, the following authorities are cited: Cooper v. Phoenix Accident & Sick Benefit Ass'n, 141 Mich. 478, 104 N. W. 734; Dunning v. Mass. Mut. Acc. Ass'n, 99 Me. 390, 59 A. 535; Bradshaw v. Am. Benevolent Ass'n, 112 Mo. App. 435, 87 S. W. 46; Sawyer v. Masonic Protective Ass'n, 75 N. H. 276, 73 A. 168; Pirscher v. Casualty Co., 131 Md. 449, 102 A. 546, L. R. A. 1918B, 996; Olinger v. Mass. Protective Ass'n (Mo. App.) 278 S. W. 86; Rocci v. Mass. Acc. Co., 222 Mass. 336, 110 N. E. 972, Ann. Cas. 1918C, 529; Bucher v. Great Eastern Casualty Co. (Mo. App.) 215 S. W. 494.

In behalf of appellee, we have considered the following authorities; So. Surety Co. v. Diercks (Tex. Civ. App.) 250 S. W. 755; Musser v. Great Northern Life Ins. Co., 218 Mo. App. 640, 266 S. W. 325; Jennings v. Brotherhood Acc. Co., 44 Colo. 68, 96 P. 982, 18 L. R. A. (N. S.) 109, 130 Am. St. Rep. 109; Mutual Ben. Ass'n v. Nancarrow, 18 Colo. App. 274, 71 P. 423; Scales v. Masonic Protective Ass'n, 70 N. H. 490, 48 A. 1084.

The cases cited do not seem to be entirely harmonious. Those cited in behalf of appellant adopt a more literal construction of the terms of the policy. The general trend of those cases may be illustrated by the cases of Cooper v. Phoenix Acc. & Sick Benefit Ass'n, by the Supreme Court of Michigan, Bradshaw v. Benevolent, Ass'n, and Olinger v. Mass. Protective Ass'n, all cited above.

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