MacFarlane v. Pacific Mut. Life Ins. Co., 10397.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Citation | 192 F.2d 193,29 ALR 2d 1403 |
| Docket Number | No. 10397.,10397. |
| Parties | MacFARLANE v. PACIFIC MUT. LIFE INS. CO. |
| Decision Date | 28 November 1951 |
29 ALR 2d 1403, 192 F.2d 193 (1951)
MacFARLANE
v.
PACIFIC MUT. LIFE INS. CO.
No. 10397.
United States Court of Appeals Seventh Circuit.
November 9, 1951.
Rehearing Denied November 28, 1951.
Cleland P. Fisher, Janesville, Wis., for appellant.
Leon B. Lamfrom, A. J. Engelhard, Milwaukee, Wis., for appellee.
Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
MAJOR, Chief Judge.
This action was instituted by the plaintiff to recover damages upon a breach and repudiation of a certain health and accident insurance policy issued by defendant. The district court, which heard the case without a jury, upon its findings of fact and conclusions of law entered judgment awarding plaintiff the sum of $109.68 damages, interest and costs. From this judgment plaintiff appeals.
Plaintiff, on September 14, 1946, while the policy was in force, contracted poliomyelitis (polio). As a result, his legs were paralyzed to such an extent that they are practically useless as a means of locomotion. Defendant paid plaintiff $200 per month from the inception of his illness through the month of July, 1947, when it denied further liability.
The pertinent portions of the policy are contained in Part I, paragraphs (a) and (b), each of which is entitled "The Sickness Monthly Indemnity." Paragraph (a), designated as the "House Confinement" clause, provides a lifetime monthly income of $200 for a sickness "which commences while this Policy is in force, throughout which the Insured by reason of such sickness is wholly, necessarily and continuously disabled and prevented from performing every duty pertaining to his occupation and is necessarily, strictly and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself." Paragraph (b), designated as a "Non-House Confinement" clause, provides for the same monthly income "not exceeding three months, which commences while this policy is in force, throughout which the insured, although not confined within the house, is by reason of such sickness wholly, necessarily and continuously disabled and prevented from performing every duty pertaining to his occupation and is necessarily under the regular care and attendance of a legally qualified physician or surgeon other than himself."
Thus, paragraph (a) imposes three conditions which the insured (plaintiff) must meet as a prerequisite to his right to recover. He must have been (1) wholly,
Plaintiff's cause of action is predicated upon paragraph (a), and it is conceded that he met the first requirement; in fact, the court found that plaintiff "was at all times between September 14, 1946, and August 7, 1947, `wholly, necessarily and continuously disabled and prevented from performing every duty pertaining to his occupation'." As to conditions (2) and (3), the trial court found that the plaintiff, after May 8, 1947, was no longer "necessarily, strictly and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself." The court, having found the issues relative to these two conditions adversely to the plaintiff, denied recovery.1
Inasmuch as the court found and it is conceded that plaintiff, as a result of his illness, remains totally and permanently disabled, we see no point in a detailed description of his physicial condition.
Nor do we think it important to relate in detail the findings of the court concerning plaintiff's activities subsequent to May 8, 1947. A brief resume will suffice. Commencing on that date,...
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