Maresh v. Peoria Life Insurance Company

• Decision Date: 06 June 1931
• Docket Number: 29,517
• Citation: 299 P. 934,133 Kan. 191
• Parties: ADOLPH LAURENCE MARESH, Appellee, v. PEORIA LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

299 P. 934

133 Kan. 191

ADOLPH LAURENCE MARESH, Appellee, v. PEORIA LIFE INSURANCE COMPANY, Appellant

No. 29,517

Supreme Court of Kansas

June 6, 1931

Decided January, 1931.

Appeal from Lyon district court; ALONZO C. MCCARTY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCIDENT INSURANCE--Permanent Disability--Construction of Policy. The provisions of an insurance policy providing for payment of income in case of total and permanent disability due to bodily injuries which then and at all times thereafter prevent performance of any work or conduct of any business for compensation or profit, interpreted.

2. SAME -- Disability to Perform Work or Conduct Business for Profit -- What Constitutes. The proceedings considered, and held the jury, under correct instructions, properly found plaintiff was totally and permanently disabled by bodily injuries of the character contemplated by the policy.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, M. F. Cosgrove, all of Topeka, Gilbert H. Frith, C. V. Beck, both of Emporia, and J. B. Wolfenbarger, of Peoria, Ill., for the appellant.

Bennett R. Wheeler, S. M. Brewster, John L. Hunt, Virgil V. Scholes, Margaret McGurnaghan, all of Topeka, O. T. Atherton and E. H. Rees, both of Emporia, for the appellee.

OPINION

BURCH, J.:

The action was one to recover on a life insurance policy which also provided for payment of a monthly income for life in case of total and permanent disability. Plaintiff recovered, and defendant appeals.

The policy was dated February 11, 1927. At that time plaintiff lacked a few days of being twenty-six years old, was six feet two inches tall, and weighed 200 pounds. His common-school education ended with the first year in high school. After that he took a two and a half months' course in business college. His studies there were penmanship, arithmetic, business spelling, and commercial law. For a time plaintiff was an uncertified substitute who helped the mail clerk on mail trains. He had worked some for neighbors, had worked with a road construction company, and had never made a living other than by manual labor. When the policy was issued his occupation was farming. He and his brothers farmed together, with his father, and he had no expectation of changing his occupation.

On August 5, 1927, while plaintiff was plowing with a tractor, the wheel of the tractor ran over him and crushed his chest, and the cutter of the plow cut his right foot and left leg. It was about an hour and a half after the accident before plaintiff was discovered, and his bloody wounds were then filled with dirt. He was taken to a hospital, and his injuries were found to be very severe. The wounds on the foot and leg became infected, and the pus ran from them for a long time. He developed traumatic pneumonia, which was followed by empyema. A section of a rib was removed, and the pleural cavity was drained by tubes for six or eight weeks. From the pneumonia condition bronchitis developed. In the hospital plaintiff had fluid in the bronchial tubes, and air passing through made a sound like soda water. He remained in the hospital seventeen weeks. After he went home from the hospital he had paroxysms of coughing, and it was necessary to administer morphine to quiet him.

On December 15, 1928, plaintiff commenced an action to recover on the following provisions of the policy:

"For total and permanent disability:

"Upon the receipt of proof satisfactory to the company that the insured is totally and permanently disabled as hereinafter defined, the company will:

"Company will pay premiums:

"1. Pay for the insured all premiums becoming due hereon after the receipt of such proof and during the continuance of the total and permanent disability of the insured, and will also

"Pay monthly income for life:

"2. Pay to the insured a monthly income for life of one per cent of the face of this policy; the first payment of such income to be paid immediately upon receipt of such proof, and subsequent payments to be made on the first day of each month thereafter as long as the insured shall live and be totally and permanently disabled as hereinafter defined. . . .

"Total and permanent disability of the insured must be due to bodily injuries or disease occurring while this policy is in full force, and before the insured shall have attained the age of sixty years, and must be such as to prevent the insured then and at all times thereafter from performing any work or conducting any business for compensation or profit; provided that, notwithstanding proof of disability may have been accepted by the company as satisfactory, the insured shall at any time, on demand, but not oftener than once in each period of twelve months, furnish proof satisfactory to the company of the continuance of such disability, and if such proof is not furnished, or if it shall appear to the company that the insured is able to perform any work, or to conduct any business for compensation or profit, then the company shall cease to pay or allow the above benefits, and the insured shall immediately resume the payment of premiums hereon. The company will extend the privileges and benefits for total and permanent disability hereunder to cover the irrecoverable loss of the entire sight of both eyes, or the severance of both hands at or above the wrists, or of both feet at or above the ankles, or of one entire hand and one entire foot."

In the petition plaintiff's disability was pleaded as follows:

"That as a result of the injury to his chest, pneumonia developed, which was complicated by empyema, which necessitated an operation, and part of one rib was resected, and the pleural cavity drained and his lungs permanently injured. He sustained and has a permanent paralysis of the left external popliteal nerve, resulting in a foot drop, and he suffered a division of the right posterior tibial artery just in front of the malleolus, which resulted in inefficient circulation to the right foot to such an extent that he had no use of the said foot so that he can use it to any extent; that on the right leg all extensor tendons except to the little toe are severed as well as the nerves of sensation on the inner side, or if the tendons are not severed they have adhered to the scar so as to be permanently useless; that since said accident, this plaintiff has been unable to do any work, and was by said accident permanently and totally disabled from carrying on his business and from performing any work or conducting any business for compensation or profit."

At the trial the experts debated whether plaintiff had bronchiectasis, which is a disease of the bronchial tubes. There was some uncertainty with respect to existence of that form of disease, but there was evidence that plaintiff's breathing apparatus is not normal, and the condition causes shortness of breath, troubles plaintiff when he undertakes something requiring exertion, prevents him from doing work requiring exertion, and makes it important he should be out in the open air in a good climate.

A qualified surgeon testified as follows:

"On my examination of June 11, 1928, the left leg presented a healed scar right in here--about four inches in length; the left leg was smaller than the right, about one and one-half inches. The left foot was down, and the heel part was slightly shortened. There was pretty good circulation in the foot and leg, but no sensation. He couldn't tell when the outside of the foot was being touched. There was some sensation on the inner side. On the right foot there was a scar extending from the back of the heel across to the front of the ankle, just below the ankle joint. This scar was healed, but the tendons were caught apparently in the scar so he had very little movement of the four toes. He could move the little toe. There was apparently some disturbance in the circulation in following the scar--and of the sensation. The foot pulled in, and had a tendency to roll under him. He had good movement in the ankle going up and down this way (indicating).

"On April 1, 1929, the condition was very similar. He still had the drop foot, and the circulation in the right foot was impaired as well as the sensation, and the toes still flexed. Both feet and legs were in about the same condition, and there had been shrinkage of the muscles along the calf a little since the first examination.

"The condition to-day is about the same--a little more shrinking of the left leg, perhaps; it is about one and three-quarter inches smaller than the right one--originally it was about one and one-half inches. I think there is perhaps a little pull in the right foot and the rolling under of this foot--the scars across the instep, and he...