Mutual Ben. Health & Acc. Ass'n v. McDonald

• Decision Date: 07 May 1923
• Docket Number: 10341.
• Citation: 73 Colo. 308,215 P. 135
• Parties: MUTUAL BEN. HEALTH & ACC. ASS'N v. McDONALD.
• Court: Colorado Supreme Court

215 P. 135

73 Colo. 308

MUTUAL BEN. HEALTH & ACC. ASS'N v. McDONALD.

No. 10341.

Supreme Court of Colorado

May 7, 1923

Department 3.

Error to Arapahoe County Court; George W. Dunn, Judge.

Action by John T. McDonald against the Mutual Benefit Health &amp Accident Association. Judgment for plaintiff, and defendant brings error.

Affirmed.

Louis P. Erny, of Denver, and G. J. Cleary, of Omaha, Neb., for plaintiff in error.

Bentley McMullin and Northcutt & Northcutt, all of Denver, for defendant in error.

CAMPBELL J.

The plaintiff, McDonald, a carpenter by occupation, living at Aurora, Colo., held an accident and health policy of indemnity issued by the defendant company. Among other things, it provides that any accidental injury to the insured resulting in septicemia shall be classed and paid for as sickness or illness as set forth in paragraphs H and I, which read:

'Part H. Confining illness, twenty-four dollars per week. For total disability of one day or more resulting from sickness originating after thirty days from date of this policy, and confining the insured continuously within doors payment will be made as follows.'

The payment is at the rate of $24 per week not exceeding 30 weeks.

'Part I. Nonconfining illness, twelve dollars per week. For total disability of one day or more, resulting from sickness originating after thirty days from date of this policy which does not confine the insured continuously within doors, amount to be paid shall be one-half the amount allowed for confining illness, but not exceeding five weeks.'

The plaintiff, having received an injury resulting in septicemia sued for compensation in the sum of $852. The defendant admitted liability in the sum of $248.55. The trial to the court, without a jury, was on stipulated facts, and judgment thereon was for plaintiff in the sum of $780 and costs, of which $720 was for 30 weeks' loss of time under paragraph H at $24 per week, and $60 under paragraph I for five weeks at $12 per week. On this writ of error by the insurer, only questions of law are involved.

The salient facts are that on August 4, 1920, plaintiff was attacked and bitten by a ferocious and vicious dog, thereby sustaining bodily injuries which resulted in septicemia, commonly called blood poisoning. As a result thereof, and independently of all other causes, the plaintiff was, on August 4, 1920, and ever since that time, and up to the beginning of this action, has been, totally disabled and prevented from attending to any business. He did not leave his home or go out of his house between August 4 and September 28, and during such period was treated by a physician at his house. On September 28 and thereafter, and until the complaint was filed, and approximately once each week, plaintiff left his home and went to the office of his physician in the city of Denver, a distance of about six miles, for the sole purpose of receiving medical treatment for his injury. All the requirements of the policy as to proofs and other matters were met by the plaintiff. The defendant, as stated, admitted limited liability which it says was for the period of time from August 4 to September 28, 1920, under paragraph H. at $24 a week, and five weeks' liability at $12 a week under paragraph I, aggregating $248.55.

The material question in the case is as to the meaning and construction of the words in paragraph H, 'total disability * * * resulting from sickness, * * * and confining the insured continuously within doors,' in connection or contrasted with, as defendant says, the words in paragraph I, 'for total disability * * * resulting from sickness * * * which does not confine insured continuously within doors.' The meaning of the phrase in controversy, as of any particular clause in any contract, is not to be determined as if it stood alone, but in connection with all other provisions, as a whole. It is sometimes said that a policy or contract of insurance is to be construed most strongly against the insurer, since he selects the words of which it is composed. That is not an exact or accurate statement of the rule of law. Speaking generally, it is to be construed the same as any other contract. If the meaning is obscure, uncertain, or ambiguous, or words of an equivocal or doubtful meaning are employed, the presumption is against the insurer, by whom the instrument is drawn, but, when the words are so plain that there is no room for construction, the contract should not be so interpreted as to introduce an ambiguity, and then enforced in favor of the insured. The insured took out this policy as an indemnity against loss of time in case of total disability to pursue his usual avocation. That is the principal object of the contract. The protection which it affords is what the insured paid his premium for. It is in connection with this, the main object of the contract, that the meaning of its other subordinate or limiting conditions and provisos should be determined. These conditions and provisos are to be 'strictly construed against the insurer because their object is to limit the scope and defeat the purpose of the principal contract.' Jennings v. Brotherhood Acc. Co., 44 Colo. 68, 76, 96 P. 982, 18 L.R.A. (N. S.) 109, 130 Am.St.Rep. 109; Boaz v. Travelers of Amer., 69 Colo. 44, 49, 168 P. 1178; Mutual Ben. Ass'n v. Nancarrow, 18 Colo.App. 274, 71 P. 423.

The language is not always to be interpreted literally. No forced or unnatural meaning should be given. Sympathy with the insured, because of his disability, should not swing judgment in his favor, or give him compensation to which he is not, within the terms of the contract, entitled. Refined reasoning of the insurer, by its seductive charm, must not be rewarded by withholding from the insured the fruits of a contract to which he is entitled. Where a clause in a contract of insurance is susceptible of two constructions, that one will be adopted which is most favorable to the assured. Metropolitan Cas. Ins. Co. v. Bergheim, 21 Colo.App. 527, 536, 122 P. 812.

There is no question as to the plaintiff's total disability. That is admitted. But in a plausible and ingenious argument counsel for the insurer contend that the stipulated facts show that the insured was not 'continuously confined within doors' during the entire period of time for which full indemnity was given. They say that the ordinary meaning of 'CONTINUOUSLY' IS 'WITHOUT BREAK, CESsation, or interruption.' since the insured, after September 28, and until the beginning of this action, although during all that time he was totally disabled, went out of his house once each week, and rode in the street cars to the city of Denver for the sole purpose of receiving medical treatment, he therefore forfeited his right to full indemnity after his first visit. The insurer unquestionably had the right to insert such a limiting clause in its contract, and unless it is enforced by the courts as written, and as properly interpreted, a new contract by judicial construction is made for the parties which they did not, and had no intention to, make. We are told that insurance companies have learned from experience that sometimes unscrupulous policy holders practice malingery for the evident purpose of 'living off the insurer' long after disability ceases, and it was for the purpose of discouraging protracted illness that such limiting clauses were inserted in policies of insurance, citing Reeves v. Midland Casualty Co., 170 Wis. 370, 174 N.W. 475, 959. Without pausing to comment, we merely observe that, if the sole object of this requirement of 'continuous confinement' is to discourage malingery, its bearing is upon the element of disability which is admitted. It is only the meaning of the 'confinement,' not the 'disability,' clause that is here involved. These limiting clauses, however, should have a reasonable, not a harsh, construction, and it should be such as to prevent...