Michigan Life Ins. Co. v. Hayes

• Decision Date: 08 February 1960
• Docket Number: No. 5-1914,5-1914
• Citation: Michigan Life Ins. Co. v. Hayes, 332 S.W.2d 593, 231 Ark. 614 (Ark. 1960)
• Parties: MICHIGAN LIFE INSURANCE CO., Appellant, v. J. Donald HAYES, Appellee.
• Court: Arkansas Supreme Court

Page 593

332 S.W.2d 593

231 Ark. 614

MICHIGAN LIFE INSURANCE CO., Appellant, v.J. Donald HAYES, Appellee.

No. 5-1914.

Supreme Court of Arkansas.

Feb. 8, 1960.

Rehearing Denied March 21, 1960.

Barber, Henry, Thurman & McCaskill, Little Rock, for appellant.

Osborne W. Garvin and Wright, Harrison, Lindsey & Upton, Little Rock, for appellee.

HARRIS, Chief Justice.

This litigation involves the construction of the 'Confinement Clause' of an insurance policy issued to Dr. J. Donald Hayes of Little Rock by the Michigan Life Insurance Company.In May of 1952, Huntington & Homer, Inc., General Agents for the company, mailed, from their Chicago office, to a large number of professional men in Little Rock, descriptive literature of a new policy which the company was issuing to attorneys, dentists, and physicians.An application and a specimen policy of the company were enclosed.During the same month, Dr. Hayes executed the application and mailed same to the agency, which in turn forwarded the application on to the company's office in Detroit.The application was accepted, policy was issued on May 27th, effective June 1, 1952, and returned to the agency, which in turn forwarded it on to Dr. Hayes in Little Rock.Statement for the premium due ($190) was also enclosed, and Dr. Hayes mailed his check on May 29, 1952.Subsequently, the doctor also paid the 1953 and 1954 premiums.The policy, styled 'Professional Disability Policy', which is a health and accident policy, provides, inter alia, as follows:

'Article 2.

'If such injuries, sickness or disease shall wholly, continuously and necessarily disable the Insured, and prevent him from performing every duty of his occupation, the Company will pay at the rate of the Monthly Indemnity specified in the Schedule on page four hereof, for the period of such disability, not to exceed three years commencing with the eighth day of such disability.

'If under the preceding paragraph of this Article such disability shall necessarily confine the Insured within a hospital during the first seven days of disability, said Monthly Indemnity shall then be payable commencing with the first day of such hospital confinement.

'After the payment of the Monthly Indemnity for three years as aforesaid, the Company will continue the payment of Monthly Indemnity at the same rate thereafter so long as the Insured shall live and be wholly, continuously and necessarily:

'A.Disabled by such injuries from engaging in any occupation or employment for wage or profit;

'B.Confined in the manner as required in the next paragraph, as the result of sickness or disease and regularly visited and treated by a legally qualified physician or surgeon other than himself;

"Confined' means that the Insured is absolutely unable to leave the house and the yard situated immediately around the house, and in order to receive the Monthly Indemnity, the Insured must at all times remain within such confines without any exception but one, namely, the Insured, when deemed necessary and prescribed by the physician or surgeon, may be transported to and from the office of the physician or surgeon or to and from the hospital or sanitarium.If at any time the Insured shall leave such confines, except to be transported to and from the office of the physician or surgeon or to and from the hospital or sanitarium as provided above, payment of the Monthly Indemnity shall terminate.'

On May 5, 1954, Dr. Hayes suffered a heart attack, and under the schedule of benefits provided in the policy, was paid, upon the total disability coverage, the sum of $300 per month for three years, or a total amount of $10,800.Thereafter, appellee contended that he was due $300 per month under the confinement clause of the policy, but appellant refused to pay on the ground that Hayes was not confined to the house in conformity with the definition of 'confinement' set out in the policy.On August 29, 1957, appellee instituted suit for recovery, amending his complaint in December, 1958, to include amounts which he contended had accrued during that period.The cause was heard by the court, sitting as a jury.On January 8, 1959, judgment was entered for Dr. Hayes in the amount of $6,671.85, which included interest and 12% penalty.An amended judgment was entered to include attorney's fee, in the sum of $1,250, making the total judgment $7,921.85, together with interest thereon at 6% per annum.From such judgment comes this appeal.Appellant relies upon two points for reversal, but under the conclusion we have reached, it is only necessary to discuss point two, which simply poses the question of whether Dr. Hayes was confined, as the term is used and defined in Article 2, of the policy.

Let it first be pointed out that the 'total disability' of Dr. Hayes is not in issue, and appellant admits that Hayes became totally disabled in May, 1954, and is still so disabled, and unable to practice his profession.As previously mentioned, the company paid appellee for the full three years total disability as provided in Article 2.We are therefore only concerned with whether Dr. Hayes is now entitled to further payments under provision B of the contract.The record reflects the following activities on the part of appellee in 1957 and 1958.He went deer hunting to the Old Dixie Hunting Club, ¹ located in Chicot County, during the 1957 deer season, and attended the opening deer season at the Club in the fall of 1958, which started on November 10th.Dr. Hayes stayed the full week, from Monday until Saturday.He also went to the opening in December, staying Monday and Tuesday, returning on Tuesday night.²Appellee likewise hunted deer in Mississippi during the seasons, which follow immediately upon the Arkansas seasons.His testimony reflected that he stays in town at the motel, and a friend drives him back and forth to the camp.He has a choice of stands and sits in a chair by a tree hidden by brush--upon getting tired, he gets in his car and goes back to town.The distance from the motel to the camp is ten or twelve miles.Dr. Hayes testified that he would go on the deer stand early, getting up at 4 or 4:30, and eating breakfast, 'we have breakfast early in order to drive out to the deer stand before daylight'; that he would stay on the deer stand 'from a few minutes to a few hours.Of course, you don't always do like you want to do.If you come along and kill your deer the first thirty minutes, that pretty well ends the hunting, then you are visiting your friends, getting the deer taken care of, and if the dogs are running around, you have to sit there three or four hours.

'Q.Did you ever kill a deer the first thirty minutes?A.I have lots of times.I am a pretty good deer killer.

'Q.Do you sometimes have to stay three or four hours?A.Yes, I have stayed three or four days and not kill a deer.

'Q.I mean when you go out in the morning you may stay three or four hours or thirty minutes?A.According to how I feel.I have my car with me.May jeep or car.If I feel tired I get in the car and rest.If the sun comes up and gets warm, I may take a nap.I was asleep down there and a deer woke me up and I killed him last year.'

The testimony further reflected that Dr. Hayes has made a number of trips to Hempstead County.He testified that he sometimes does his own driving and other times has a boy who acts as chauffeur--that he drives the car more frequently than when first becoming ill.He testified that he particularly drives the car on Sundays, since he does not employ the chauffeur at that time.He frequently goes to the Elks Club and plays dominoes, and sometimes drives in the evening; when he plays dominoes late, he drives the car home himself.From the testimony:

'You stay at the Elks Club from about noon until 5 in the evening?A.Sometimes later than that.Sometimes I get there before they even open up.'

He further testified that he had frequently attended meetings of the North Little Rock Elks Club after May 5, 1957, would sometimes go in the afternoons to play dominoes, and would stay until the meeting adjourned about nine o'clock.

'In fact, in the last two or three years, I have gone to more meetings than I ever did before except the year I was exalted ruler.I had to go then.I didn't go before I got sick much, I didn't care anything about it then.

'Q.What time do the meetings convene?A.Eight o'clock.They have supper about seven and the meeting about eight.

'Q.Do you go to the suppers?A.Yes, sir.

'Q.What time does the lodge adjourn?A.About nine o'clock.'

The evidence given by appellee reflected that his brother still maintains the same office in the Donaghey Building (formerly occupied by the two), and appellee goes by frequently to get his mail, visit with the employees, and take care of business interests (not referring to medical practice, which the doctor has not engaged in since his heart attack).He stated that he sometimes stays as much as two hours, and has stayed as long as three hours.In the summer of 1957, he took the baths at the Majestic Hotel in Hot Springs, and while at that city, would fish on Lake Ouachita.Appellee has mainly fished at Indian Bay, which is about 100 miles from Little Rock, and has also done some fishing at Bearskin Lake, sometimes two or three times a week.On some occasions, the chauffeur drove, and at other times, he operated the automobile.The doctor testified that he keeps a boat at Old River, ³ and that he would go there each weekend during the summer, and sometimes two or three times during the week, and that he has operated the boat while members of the family were water skiing.Dr. Hayes visited one of his friends in Little Rock who operated a filling station so frequently that, according to his testimony, 'I visited so much down there, that it got out that I owned the oil company.'

The above activities were all related by Dr. Hayes, and obviously cannot be construed as literal...