Malone v. Continental Life & Acc. Co.

• Decision Date: 11 June 1965
• Docket Number: No. 9549,9549
• Citation: 403 P.2d 225,89 Idaho 77
• Parties: Archie E. MALONE, Plaintiff-Respondent, v. CONTINENTAL LIFE AND ACCIDENT COMPANY, a corp., Defendant-Appellant. a corp., Defendant-Appellant.
• Court: Idaho Supreme Court

Page 225

403 P.2d 225

89 Idaho 77

Archie E. MALONE, Plaintiff-Respondent, v. CONTINENTAL LIFE AND ACCIDENT COMPANY, a corp., Defendant-Appellant. a corp., Defendant-Appellant.

No. 9549.

Supreme Court of Idaho.

June 11, 1965.

Langroise, Clark & Sullivan, Boise, for appellant.

Parry, Robertson & Daly, Twin Falls, for respondent.

SMITH, Justice.

This is an appeal from a summary judgment against appellant in favor of respondent for medical and hospital expenses incurred on behalf of respondent's wife during her lifetime until her death occurred during January, 1963, allegedly covered by a general family hospital policy, applied for October 24, 1962, and issued by appellant effective as of October 25, 1962; also for attorneys fees and costs.

Appellant assigns error committed by the trial court in entering summary judgment for respondent, and in failing to grant appellant's motion for summary judgment. Appellant raises the issue whether the loss resulted from 'sickness originating while the policy is in force' as required by the policy. The facts necessary to be considered are hereinafter set our, taken from 'the pleadings, depositions, and admissions on file, together with the affidavits,' I.R.C.P 56(c) of the parties in support of their respective motions for summary judgment.

During the summer of 1962, respondent's wife, Josephine, then aged 38 years, experienced a feeling of tiredness with occasional headaches; about September 1, 1962, she became afflicted by a persistent cough. On September 22, 1962, she consulted with Dr. Affleck, of Twin Falls, concerning the ailments. She returned to his office on October 1, 3, 5, 8, 11, 16 and 22, and each time consulted with the doctor except the visits of October 3 and 11. Mainly she sought relief from the persistent cought, for which the doctor prescribed warious remedies.

During the visit of October 16th, Mrs. Malone directed the doctor's attention to a bulge in the right lateral wall of the vagina, which the doctor incised obtaining a bloody, purulent drainage. On October 22nd the doctor again incised that area, and removed a portion of the mass, stating that such removal was without Mrs. Malone's knowledge, and submitted it for analysis to Dr. Carle, a pathologist in Twim Falls.

On October 22nd, Mrs. Malone directed the doctor's attention to a lump in the right upper quadrant of her abdomen, beneath the costal margin. The doctor thought the lump perhaps was a prolapsed kidney. The doctor then testified that Mrs. Malone was worried about this lump in the kidney area. 'This is the first time she really became a little alarmed about herself. * * * That was the first time that she then became a little panicked. * * * she began to think of cancer. This had been moving fairly fast here [the kidney area].'

Dr. Carle, after examining the material submitted, determined that it indicated the presence of a highly malignant or cancerous tunmor, and on October 23rd, submitted such a report to Dr. Affleck. Later examinations and consultations determined the origin of the tumor to be in the right kidney.

On October 25th, Dr. Affieck called Mrs. Malone to his office and, by pyelographic technique, obtained x-ray photographs of the right kidney. He stated he did not tell Mrs. Malone 'too much,'--only something to the effect that he suspected some kind of a tumor. He also stated that he did not advise Mrs. Malone of the report received October 23rd from the pathologist although he stated he may have mentioned it to respondent, Mr. Malone, on October 25th.

On October 26th, Dr. Affieck referred Mrs. Malone to Dr. Davis, a urologist in Twin Falls. Dr. Davis stated he had examined the x-rays of the patient's right kidney taken by Dr. Affieck; he first saw them October 26th in Dr. Affick's office. Dr. Davis stated that the x-rays disclosed a tumor in the right kidney which he believed to be cancerous. Mrs. Malone had suffered such condition for some time, so as to become sufficiently noticeable for diagnosis by the x-rays taken by Dr. Affieck by use of the pyelographic technique.

History taken by Dr. Davis disclosed Mrs. Malone's knowledge of her affiction of the vaginal mass about three or four weeks; she experienced difficulty with sexual relations. She mentioned frequency in urination during the previous two or three weeks. She was afflicted by a feeling of fullness or pressure in the region of her right kidney. She had suffered a chronic cough for about three months and had lost strength. All, according to the doctor, were symptoms of the malignancy, including metastatic spread of the tumor cells to the lungs. Dr. Affick had told her on October 22nd he was going to send the tissue to Dr. Carle for examination. The testimony of Dr. Davis then appears:

'Q. Did she know that Dr. Affleck had taken a section from the vaginal area?

'A. Yes, but she hadn't a record on it yet.'

Dr. Davis, after further examination in confirmation of his diagnosis, removed the right kidney by surgery on October 29th. The lower pole of the kidney was completely replaced by a large necrotic tumor, pathologically determined to be carcinoma, i. e., cancer. The doctor stated that the tumor had been present a month or longer.

Dr. Carle, the pathologist who examined the tissue taken October 22nd from Mrs. Malone, stated he was absolutely certain of his diagnosis that the tissue indicated the presence of a highly malignant tumor, originating elsewhere than the area from where the tissue was taken.

Respondent testified that he knew about his wife's visite to Dr. Affieck. She alwasy discussed those visits with him. He stated that Mrs. Malone had a tired feeling during the summer of 1962. She had headaches occasionally, and it wasn't common for her to have headaches. He related the development of the cough. She didn't complain about having a lump in her right side until she went to Dr. Affieck, . Soreness which she experienced, she attributed to the cough.

Respondent knew about the 'minor surgery,' which Dr. Affick performed upon Mrs. Malone about the middle of October, 1962, in an attempt to remedy the vaginal tumor, designated by Dr. Affieck as an embryonic cyst, which he lanced and drained. On October 22nd he knew the doctor had advised that the cyst area was not healing and would 'just have no watch it.' He then related his knowledge as of October 26th of the examination by Dr. Davis on that date and the diagnosis of probable malignancy; also the subsequent surgery for removal of the right kidney.

Respondent then testified concerning the incident of his applying for appellant's general family hospital policy of insurance. Mr. Daw, appellant's agent, had learned that respondent was interested in obtaining group insurance. Pursuant to an appointment by telephone Mr. Daw met with respondent in his home, the evening of October 24, 1962. Mrs. Malone was present and could hear the conversation between the two men. In regard to the conversation with Mr. Daw, respondent testified that inasmuch as Mr. Daw inquired whether 'there had been anything serious in the last year' as to affictions of any of the persons for whom the group insurance was sought, he, respondent, did not...