Mutual Ben. Health & Acc. Ass'n v. McDonald, 10341.

• Docket Nº: 10341.
• Citation: 73 Colo. 308, 215 P. 135
• Case Date: May 07, 1923
• Court: Supreme Court of Colorado

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 & Accident Association. Judgment for plaintiff, and defendant brings error.

Affirmed.

[73 Colo. 309] 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 [215 P. 136] paid [73 Colo. 310] 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 [73 Colo. 311] 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 [73 Colo. 312] 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...