MacFarlane v. Pacific Mut. Life Ins. Co.
| Decision Date | 28 November 1951 |
| Docket Number | No. 10397.,10397. |
| Citation | 192 F.2d 193,29 ALR 2d 1403 |
| Parties | MacFARLANE v. PACIFIC MUT. LIFE INS. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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.
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, necessarily and continuously disabled and prevented from performing every duty pertaining to his occupation, (2) necessarily, strictly and continuously confined within the house and (3) therein reguarly visited and attended by a legally qualified physician or surgeon other than himself. Paragraph (b) imposes two conditions. He must be (1) wholly, necessarily and continuously disabled and prevented from performing every duty pertaining to his occupation and (2) necessarily under the regular care and attendance of a legally qualified physician or surgeon other than himself.
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, plaintiff sat on the porch of his home, and on June 6, 1947, purchased an Oldsmobile, so converted as to permit it to be operated by hand controls, thus making the use of the driver's legs unnecessary in its operation and control. Thereafter, he frequently operated the car for business, pleasure and for the accommodation of his family. He would wheel himself in a wheelchair from his house to the driver's seat of the car and pull himself into the car with one hand while holding the wheelchair with the other. After he had thus pulled himself into the car, he was able to operate it efficiently by the use of hand controls. Commencing early in June, 1947, he made trips to places in and about his farm, took his children home from school, made bank deposits by driving up to the bank and having someone deposit the money in the bank, and called on his physician in Janesville. Between June 6, 1947 and the day of the trial, plaintiff made numerous trips away from home, both by auto and by train. In July, 1947, he made a train trip to the Sheltering Arms at Minneapolis, Minnesota, an institution where polio victims were taught to exercise and to use walking sticks, known as "Sister Kenney sticks." Again, in January, 1948, he made a trip to the same place by train. In the same month, he drove his automobile to Appleton and Kaukauna, Wisconsin, on a business trip, stayed one night at a hotel and visited with a cousin on the way home. In March, 1948, he made a trip to Cleveland, Ohio, by train to attend a Game Breeders' Association convention, being absent from home three or four nights and staying at a Cleveland hotel. When the convention ended, he took a trip to Pennsylvania and stayed overnight at two different places. In February, 1949, he made a business and pleasure...
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