Mutual Ben. Ass'n v. Nancarrow

• Decision Date: 12 January 1903
• Citation: 18 Colo.App. 274,71 P. 423
• Parties: MUTUAL BEN. ASS'N v. NANCARROW.
• Court: Colorado Court of Appeals

71 P. 423

18 Colo.App. 274

MUTUAL BEN. ASS'N v. NANCARROW.

Court of Appeals of Colorado

January 12, 1903

Appeal from district court, Arapahoe county.

Action by William P. Nancarrow against the Mutual Benefit Association. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank S. Tesch, for appellant.

THOMSON J.

The appellee brought this action against the appellant to recover upon a policy of insurance which it had issued to him. The complaint alleged that on the 24th day of January, 1898, the defendant, in consideration of certain payments to be made to it by the plaintiff, delivered to him its policy of insurance, whereby it insured him against accident accidental death, and certain kinds of sickness, among which was acute pericarditis, and promised to pay the plaintiff $8 per week from the first to the last visit of the attending physician if the plaintiff should be totally disabled and confined to the house; that the plaintiff made the payments required by the policy; that on the 24th day of January 1899, the plaintiff became sick from acute pericarditis became totally unable to attend to any business, and was under the care of a physician until April 18, 1899,--a period of 12 weeks; that he was during that time totally disabled and was confined to the house, except that, on account of poverty, he visited his physician about 12 times, there being a car line between his house and the physician's office; that he did all things necessary under the policy to entitle him to its benefits; and that the defendant wrongfully refused to pay the amount due him by the terms of the policy, being $96. The defendant demurred to the complaint for want of facts to constitute a cause of action, and, its demurrer being overruled, answered, admitting the execution and delivery of the policy, and the making of the payments which it specified, but denying the other allegations of the complaint. It also alleged affirmatively that the plaintiff violated the conditions of the policy 12 different times during his sickness, by leaving his house and coming into Denver on the street cars. When the plaintiff rested his case, the defendant moved the court for a nonsuit on the ground that the evidence showed that the plaintiff was not confined to the house. The motion was denied, and, the defendant offering no evidence, judgment was rendered against it for the amount claimed. It brings the case here by appeal.

In support of the demurrer, it is argued that the complaint shows that the plaintiff was not totally disabled, and was not confined to the house, because it states that at different times he left the house and called upon his physician. The words "totally disabled," as well as the words "confined to the house," must receive a reasonable interpretation. The purpose of the policy was to indemnify the plaintiff against loss occasioned by inability to attend to his work or business on account of sickness. The total disability contemplated by the instrument does not mean a state of absolute helplessness. The plaintiff might have been able to walk,--he might have been able to ride on the cars to his...