Ganahl v. Certain Individuals Doing Business Under Nameof Underwriters at Lloyd's London
| Decision Date | 13 June 1962 |
| Citation | 204 Cal.App.2d 571,22 Cal.Rptr. 520 |
| Parties | Frank J. GANAHL, Plaintiff and Appellant, v. CERTAIN INDIVIDUALS DOING BUSINESS UNDER the NAME and style OF UNDERWRITERS AT LLOYD'S LONDON, et al., Defendants and Respondents. Civ. 25828. |
| Court | California Court of Appeals Court of Appeals |
Robert P. Stebbins and Burton Marks by Robert P. Stebbins, Beverly Hills, for appellant.
Crider, Tilson & Ruppe, Edward A. DeBuys and Abe Mutchnik, Los Angeles, for respondents.
This is an appeal from an order granting the defendants' motion for a new trial in a case involving a disability insurance policy.
Chronologically, events occurred as follows: Plaintiff was employed as an aircraft traffic control officer from a time in 1950 to sometime in July 1956.
On or about March 9, 1955, while on the job at the Santa Monica Airport, plaintiff fell down a flight of stairs. He went to the hospital for an examination as a result of the fall and stayed home from work for four or five days. Later he took a course of treatments with Dr. R. Lewis, M.D. and Dr. John E. Bergmann, M.D. for the injuries received in the fall (including a back injury). Treatments were continued through March into April 1955. Plaintiff discontinued further treatments against the advice of his doctors. The doctors' report indicated that there had been contusions in the lumbo-sacral region; five days later (March 14, 1955) plaintiff had complained of pain in the lumbo area; on March 24, 1955, there was tenderness in the sacral area; April 14, 1955, plaintiff did not return and a follow-up letter was written on May 3, 1955.
In June 1955 the defendant solicited the aircraft control operators with reference to a group insurance disability plan. Sufficient numbers of the operators (including plaintiff) evidenced an interest in the idea and later, after negotiations, a group plan was authorized. The offering brochure contained certain questions and answers. 1
On September 28, 1955, the plaintiff signed an application for the disability insurance to be issued by the defendant. 2
On September 30, 1955, plaintiff returned to Dr. Bergmann's office, where he complained to the doctor about recurrent low back pain for the past week.
On October 3, 1955, the report of Dr. Bergmann indicates that plaintiff had stated to the doctor that the diathermy had been ineffective, that he had been unable to bend over or do any heavy lifting and that he had constant backache.
On October 8, 1955, plaintiff was admitted to a Santa Monica hospital for treatment of the back ailment. He was in traction until October 17, 1955, and on the latter date a gravity cast was applied and plaintiff was discharged from the hospital.
On November 1, 1955, the disability insurance coverage with which we are concerned went into effect. Plaintiff was unable to work on or about November 1st and was wearing a cast, which he continued to wear for a time and then wore a brace for some time thereafter.
After November 1, 1955, plaintiff was transferred from the Santa Monica Airport to the Los Angeles International Airport.
Plaintiff testified that on January 22, 1956, while at work at the Los Angeles Airport, he tripped over a piece of pipe on the airport grounds and fell. Plaintiff apparently told few, it any, persons about this fall. In appellant's opening brief it is set forth:
'It is admitted that until Ganahl saw Attorney Stebbins in the year of 1958, he did not relate the happening of the January 22, 1956 accident to anyone, including all of his doctors, his prior attorney, the Federal Government, or anybody else.'
Plaintiff filed a claim for compensation an account of an injury, the claim being in the form of an affidavit, and in part read as follows:
'CLAIM FOR COMPENSATION ON ACCOUNT OF INJURY
* * *
* * *
'9. Time of injury Wednesday March 9, 1955 0750 P, [Date] 1955 [Day of week] 0750P m. [Hour a.m. or p.m.]
'10. Disability for work began March 9, __, 1955 * * *
* * *
* * *
'19. Cause of injury I fell down the Tower Stairs as was on my way to the mens rest room.
'20. Nature and extent of injury causing disability Cracked Disk and constant pain in legs and back.
* * *
* * *
'I HEREBY make claim for compensation on account of the injury described above. * * * I have been disabled on account of this injury. * * *
'Signed this 19th day of March, 1956, at Los Angeles, California'
On May 29, 1956, there was a letter from plaintiff's then attorney to the United States Department of Labor, Bureau of Employees' Compensation, which stated in part:
'Please be advised that I am representing Mr. Frank Ganahl in his endeavors to secure employee's compensation benefits for the residuals of the industrial injury he sustained on March 9, 1955, while employed by the Civil Aeronautics Administration as a result of falling down a flight of stairs in the control tower.
'/s/ Frank J. Ganahl'
On April 3, 1956, a letter of the plaintiff to United States Department of Labor, Bureau of Employee's Compensation, in answer to department's letter of March 5, 1956, stated in part as follows:
* * *'
In April 1956 plaintiff was examined by a doctor for the C.A.A. and plaintiff's license as an operator was revoked because of plaintiff's physical unfitness.
On June 18, 1956, plaintiff's attorney mailed a letter to the United States Department of Labor, Bureau of Employees' Compensation (a copy of which was mailed to plaintiff) wherein it was stated in part:
'Enclosed please find the report of Dr. John R. Black, orthopedist, dated June 6, 1956, pertaining to the injury sustained by Mr. Frank J. Ganahl on March 9, 1955, and his present disability. * * *
On or about July 12, 1956, a laminectomy operation was performed on plaintiff and an intervertebral disc was removed.
On August 29, 1956, there was a 'Claim for Continuance of Compensation on Account of Disability' certified by the plaintiff, wherein he certified that 'on account of the injury sustained by me on March 5, 1955' he was 'disabled from March 9, 1956, to present.'
On November 27, 1956, a claim for continuance of compensation on account of disability was certified by the plaintiff in part as follows:
'* * * on account of the injuries sustained by me on June 9, 1955' he was 'disabled from 11-28-56 to December 10, 1956.'
January 4, 1957, plaintiff certified that:
'* * * on account of the injuries sustained by me on March 5, 1955' he was 'disabled from December 19, 1956 to January 1, 1957.'
On February 6, 1957, a 'Claim for Continuance of Compensation on Account of Disability' was certified by plaintiff, wherein it was stated that 'on account of the injuries sustained by me on March 5, 1955' he was 'disabled from _____, 19__, to February 6, 1957.'
On March 2, 1957, a 'Claim for Continuance of Compensation on Account of Disability' was certified by plaintiff, wherein it was stated that 'on account of the injury sustained by me on March 5, 1955' he was 'disabled from Feb.6, 1957 to March 12, 1957.'
On March 24, 1957, a 'Claim for Continuance of Compensation on Account of Disability' was certified by plaintiff, wherein it was stated that 'on account of the injury sustained by me on March 9, 1955' he was 'disabled from March 11, 1957 to March 24, 1957.'
On June 4, 1957, the plaintiff filed this action in the superior court to recover under the disability policy.
On November 13, 1957, plaintiff filed his first amended complaint in this action.
On December 14, 1957, plaintiff certified a 'Claim for Continuance of Compensation on Account of Disability' wherein he set forth that 'On account of the injuries sustained by me on March 5, 1955' he was 'disabled from May 1, 1957, to December 14, 1957.'
On November 23, 1960, plaintiff filed his supplemental complaint in this cause. Trial was started on November 23, 1960, and upon the completion thereof a verdict was rendered by the jury (ten to two) for the plaintiff in the sum of $18,000.00.
December 30, 1960, defendant filed its notice of intention to move for new trial.
January 27, 1961, the motion was made and argument was heard.
February 20, 1961, the trial judge filed and signed a memorandum on order granting motion for new trial wherein the judge under the title 'Rulings' set forth:
February 21, 1961, the clerk entered a minute order which reads as follows:
'Defendants' Motion for a New Trial, heretofore Submitted on points and authorities, is now by the Court Granted.
'Copies of Memorandum on Order Granting Motion for New Trial are mailed to counsel.'
This appeal followed in due course.
Appellant states in his...
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