Lustenberger v. Boston Cas. Co.

• Citation: 14 N.E.2d 148,300 Mass. 130
• Parties: ARMAND E. LUSTENBERGER v. BOSTON CASUALTY COMPANY. SAME v. SAME.
• Decision Date: 30 March 1938
• Court: United States State Supreme Judicial Court of Massachusetts

300 Mass. 130

14 N.E.2d 148

ARMAND E. LUSTENBERGER v. BOSTON CASUALTY COMPANY. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1938

January 4, 1938.

Present: RUGG, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Insurance Disability. Words, "Regular care."

Under the provisions of a policy of disability insurance requiring that, to be entitled to payments, the insured during the period of disability

"shall also be under the regular care of a legally qualified physician," there could be no recovery for periods when there was only intermittent, and not regular, care by such a physician.

TWO ACTIONS OF CONTRACT. Writ in the first action in the Municipal Court of the City of Boston dated March 27, 1935; that in the second action in the Superior Court dated August 20, 1936.

Upon removal of the first action to the Superior Court, the actions were heard together without a jury by Greenhalge, J., who found for the plaintiff in the sums of $822.62 and $1,402.25. The defendant alleged exceptions.

W. J. Bannan, (R.

W. McEnaney with him,) for the defendant.

C. H. Gilmore, (R.

P. Baker with him,) for the plaintiff.

COX, J. The plaintiff seeks to recover, in two actions, certain monthly indemnities under an accident insurance policy issued by the defendant. The consolidated bill of exceptions recites that in the first action, the instalments alleged to be due are for the period between July 18, 1934, and April 24, 1935, and in the second action, for a period extending from April 23 1935, to and including August 24, 1936. The amount of accident indemnity payable is $80 a month, and the premium is $7.50 payable quarterly. Paragraph A of Part II of the policy reads as follows: "TOTAL LOSS OF TIME. If injury such as is before described shall within ten days after the occurrence of the accidental event wholly and continuously disable the Insured from performing each and every duty pertaining to his occupation, the Company will pay said Accident Indemnity for such period, not exceeding five years, as the Insured shall be so disabled and during which he shall also be under the regular care of a legally qualified physician or surgeon other than himself." It is provided by Part VIII of the policy that "Compliance on the part of the Insured and beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder and any failure in this respect shall forfeit to the Company all right to any indemnity. No provision of the charter or by-laws of the Company not included herein shall avoid the policy or be used in evidence in any legal proceeding thereunder."

The injury, which was sustained on January 24, 1934, is permanent and "wholly and continuously disable[s] the insured from performing each and every duty pertaining to his occupation." He received treatment at a hospital and was attended by a physician for some period of time after he left the hospital. "There is nothing further that surgical or medical aid can do to remove said disability or improve his condition." On May 10, 1934, the wound had healed, and on or about that date the physician informed the plaintiff that there was nothing further that medical or surgical treatment could do for him to improve the injured hand, wrist and arm. The physician advised him at that time to massage the hand, wrist and arm and to rub "it" with olive oil. It could have been found on the evidence that nothing was said by the physician as to the length of time that massage should continue, but that the plaintiff had followed the physician's instructions and had continued the massage at his home ever since May 10, 1934. Under the terms of the policy the next premium following the injury was payable on March 22, 1934. This was paid by the plaintiff's employer and received by the defendant on May 31, 1934. No premium payments have been made since that date.

The plaintiff brought an action against the defendant in the Municipal Court of the City of Boston for the recovery of monthly indemnities under the policy for the months of April, May, and June, 1934, and judgment was entered and execution issued in favor of the plaintiff in the sum of $240 and costs. In that action the defendant requested certain rulings, two of which were: "5. The plaintiff is not entitled to recover unless the policy is kept in force by payment of its stipulated premiums. 6. In order to entitle the plaintiff to recover the monthly indemnities the premiums called for under the policy must be paid in accordance with the terms set forth, and failure to continue such payments will relieve the company from liability for further monthly indemnities." These requests were denied, and their denial was upheld by the Appellate Division. The ultimate decision was in favor of the plaintiff. No further appeal was taken by the defendant.

At the trial in the Superior Court the only issues raised in defence were (1) whether the plaintiff was wholly and continuously disabled, during the periods for which indemnity payments were sought, from performing each and every duty pertaining to his occupation; (2) the construction and interpretation of the provision requiring the care of a physician, involving (a) whether the plaintiff was under such care during the periods covered by these actions or any portion thereof, (b) if the plaintiff's disability was beyond aid by medical or surgical care, whether such care is a condition precedent to recovery; and (3) whether payment of premiums due under the policy subsequent to the date of the plaintiff's injury and cause of his disability is a condition precedent to his recovery.

The trial judge in the cases at bar found that in the trial in the Municipal Court the defendant "raised most of the defences relied upon here as appears from the record which is a part of the record in this case" and ruled that "so far as the defences now asserted by the defendant were involved in that suit and determined by the judgment entered in it, the defendant cannot now avail itself of them and that they are not before me. In these cases the real question which the defendant seeks to raise and which under the above ruling is still open to it, is as to the construction of the clause of the contract entitled `PART II. A. TOTAL LOSS OF TIME.'" From this we think it is clear that the judge ruled that the question of the nonpayment of premiums after May 31, 1934, was foreclosed by the judgment in the Municipal Court and was not open by way of defence in the cases tried in the Superior Court. No exception was taken to this ruling. Rule 72 of the Superior Court (1932). No question is properly before us as to its correctness and it constitutes the law of the case in respect to the issue so determined. Murphy v. Hanright, 238 Mass. 200 , 203. Glines v. Berry Box & Package Co. Inc. 248 Mass. 518 , 519, 520. See Brand v. Suburban Land Co. Inc. 299 Mass. 336 .

The trial judge also found that at the time the action was tried in the Municipal Court there had been a complete surgical recovery, and that a finding was made by the judge of that court that the plaintiff was not then under the care of a physician or surgeon, "as services of that character can no longer be of the slightest assistance to him in facilitating his recovery. His injury is permanent in character, and if his condition improves at all, it will be due to the healing force of nature alone." From the bill of exceptions, however, it appears that upon a recommittal of the case in the Municipal Court by the

Appellate Division to the trial judge the latter found in his supplemental report that "the plaintiff was under the regular care of a legally qualified physician other than himself during the months of April, May and June, 1934." The judge of theSuperior Court found further that "during the period covered by . . . [the first action, that is, between July 18 1934, and April 24, 1935] a chip of bone worked its way to the surface and for its removal and subsequent treatment of the wound visits were made to a legally qualified surgeon on October 1, 12 and 26, 1934 and subsequent to that time the plaintiff has seen the surgeon on April 16, 1936, September 23, 1936, January 9, 1937 and April 14, 1937. I understood the doctor to say that these visits, at which no treatment was given, were for the purpose of observation, in view of the previous appearance of a bone splinter and that apart...