Interstate Business Men's Accident Association v. Sanderson
| Decision Date | 31 May 1920 |
| Docket Number | 18 |
| Citation | 222 S.W. 51,144 Ark. 271 |
| Parties | INTERSTATE BUSINESS MEN'S ACCIDENT ASSOCIATION v. SANDERSON |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; reversed.
Judgment reversed and cause remanded.
Arnold & Arnold, for appellant.
According to the undisputed evidence, there can be no recovery under the first clause of the policy, because appellee's disease was not sufficient to compel him to remain strictly and continuously within the house. He was not continuously confined to his house by the disease within the meaning of the policy. The court erred in withdrawing the case from the jury. 99 Me. 390; 59 A. 535; 135 Mich. 439; 97 N.W. 966; 104 N.W. 734; 47 Pa. S.Ct. 176; 110 N.E. 972; 141 Mich. 482; 23 L. R. A. (N. S.) 359 and notes; 42 Id. 700 and note. The case here was not withdrawn from the jury. 92 Ark. 378; 100 Id. 71. The insured was not entitled to recover the penalty. 92 Ark. 378.
M. E Sanderson, for appellee.
There is no conflict in the testimony and no case for a jury. The court correctly interpreted the contract, and there is no error in the instructions. 113 Ark. 197; 117 Id 145; 111 Id. 607.
This is an action on a policy of insurance issued by appellant to appellee, insuring appellee "against loss of time by disease not due to accidental injury." The two clauses of the policy on which the action is founded read as follows:
Liability is asserted for the maximum amount ($ 175) allowed under the second clause, and for twenty-five weeks, or $ 1,250 under the first clause. Appellant conceded liability for the amount sought to be recovered under the second clause and tendered the amount to appellee. On the trial of the issues before a jury the court gave a peremptory instruction in appellee's favor. The question now before us on this appeal is whether or not the testimony presented an issue which should have been submitted to the jury.
The case was tried on the testimony of appellee himself and Doctor Phillips, who was appellee's physician. Appellant introduced no testimony at all. Appellee resided at Ashdown at the time he was stricken with the disease which caused the loss of time involved in this inquiry, and was engaged in farming and in the retail lumber business. He was manager of a lumber yard and looked after the office work, as well as the outside business. He became ill in the early part of the year 1918 while the policy was in force, and on consulting Doctor Phillips it was found that he was suffering with nephritis. On March 13, 1918, the physician pronounced appellee's condition of health to be very serious, and thereafter appellant gave but little attention to business, and his condition of health continued to grow worse. The testimony tended to show that he was entirely unable to give attention to business, and that he merely went down to his place of business, from time to time, to attend to business to a very limited extent. The evidence was sufficient, we think, to justify the finding that appellee's disease was sufficient to cause him to "refrain from performing every act of business and be under the constant treatment of a regular physician," within the meaning of the second clause of the policy. However, appellant concedes liability on this branch of the case, and it is unnecessary to discuss the evidence at length so far as it tends to establish liability under that clause.
On July 5, 1918, Doctor Phillips, who had been attending appellee regularly up to that time, advised him that his condition had become so serious that he should give up all matters of business and pleasure and go to Marlin Wells, Texas, to receive the benefit of the water and climate of that place. The physician also advised appellee that the fresh air and sunshine of that climate together with the water, would do more to build him up than anything else. At that time appellee had become very much weakened from the disease and was easily fatigued. To use the exact language of the physician, his testimony was that "the fresh air and sunshine to this patient were more beneficial than remaining in the house, and tended to arrest the disease from which he was suffering. " Pursuant to the physician's advice, appellee sold out his business and moved to Marlin, Texas, where he remained for a considerable time for the purpose of getting the benefit of the mineral water and the climate at that place. He was under the treatment of another physician while he was there, but his course of conduct and the progress of the disease is disclosed entirely by appellee's own testimony, as he did not introduce any other witness as to his stay at Marlin Wells.
Appellee stated in his testimony that he was confined to the house during his stay there, except that he made a daily trip to the post office to get his mail, and made trips a distance of four blocks to the wells to get water twice a day, and that he occasionally would stop for a short time at one of the stores along the way and make a purchase. He testified that there was a large pavilion at the well and that he would occasionally sit there for half an hour at a time, and that while at home he spent much of the time sitting out on the porch. On cross-examination of appellee it was drawn out that he had made two or three statements to appellant, and in response to the question whether or not that he had been "strictly and continuously confined within the house" he answered in the negative.
Each side asked for a peremptory instruction, and in addition to that appellant asked the court to give the following instruction:
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