Mutual Ben. Health & Acc. Ass'n of Omaha v. Bullard

• Decision Date: 19 May 1960
• Docket Number: 4 Div. 868
• Citation: 270 Ala. 558,120 So.2d 714
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION OF OMAHA v. Henry BULLARD.
• Court: Alabama Supreme Court

Page 714

120 So.2d 714

270 Ala. 558

MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION OF OMAHA v. Henry BULLARD.

4 Div. 868.

Supreme Court of Alabama.

May 19, 1960.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

C. L. Rowe, Elba, for appellee.

COLEMAN, Justice.

This is an action at law brought by appellee, plaintiff below, to recover benefits payable under an accident insurance policy issued by defendant to one Thomas L. Helms who was the employer of appellee at the time of his alleged injury. The policy 'insures each employee' of Helms and in pertinent part recites:

"This Is Not Workmen's Compensation Insurance

"This Policy Is Renewable At The Option Of The Association Only And Provides Benefits For Loss Of Life, Limb, Sight, Or Time, From Accidental Bodily Injuries, To The Extent Herein Provided.

"Mutual (M B) Benefit (H & A) (A)

"Health & Accident

"Assocation

"Omaha

"(Herein called the Association)

"INSURINGCLAUSE

"Hereby insures each employee of the individual, * * * whose name is shown in the Schedule on the last page hereof (herein called the Employer), subject to the provisions and limitations of this policy, against loss of life, limb, or sight occurring, or loss of time sustained and commencing, while this policy is in force and resulting directly, and independently of all other causes, from such injuries; the term, such injuries, as used in this policy to mean accidental bodily injuries occurring while this policy is in force, while the Employee is actually engaged, at the place of business of the Employer shown in the application attached hereto, in the performance of some duty pertaining to his occupation for which he is compensated by a wage paid by the Employer, but not to include: (1) suicide, sane or insane, (2) injuries resulting in insanity or mental infirmity, or (3) injuries received while the Employee is intoxicated or under the influence of narcotics.

"Part A. Employee's Classification

Class A

Number of Employees 15

Initial Premium $5.09

Renewal Premium $3.09

Death Benefit $1000.00

The Weekly Benefit $18.00

'........

"Part C. Accident Total Disability Benefits

"If the Employee, because of such injuries which do not result in 'any of the specific losses specified in Part D, shall be wholly and continuously disabled and under the professional care and regular attendance, of a legally qualified physician, other than himself, the Association will pay indemnity for one day or more * * * at the rate of The Weekly Benefit per week, in the amount and in accordance with the Employee's classification as described in Part A of this policy, during the period of total disability and total loss of time, but not to exceed two hundred and fifty weeks for any one accident.

* * *

* * *

"General Provisions

* * *

* * *

"4. Written notice of injury on which claim may be based must be given to the Association within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the Association.

"5. Such notice given by or in behalf of the Employee or beneficiary, as the case may be, to the Association at Omaha, Nebraska, or to any authorized agent of the Association, with particulars sufficient to identify the Employee, shall be deemed to be notice to the Association. * * *

"6. The Association upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made.

* * *

* * *

"11. All benefits becoming payable under this policy shall be paid to the beneficiary of the Employee.

* * *

* * *

"Additional Provisions

* * *

* * *

"(d) The copy of the application, attached hereto, is hereby made a part of this contract and this policy is issued in consideration of the answers shown to the questions in the application and the payment in advance of the Estimated Initial Premium for the initial term ending on the Renewal Date.

* * *

* * *

"(g) The association's liability under this policy shall not exceed the liability of the Beneficiary and in no case shall it exceed the maximums stated in the policy.

"(h) The beneficiary of the Employee, for all benefits provided herein, shall be the Employer.

* * *

* * *

"Accident Expense Rider

* * *

* * *

"Part E and Part F of this policy are hereby made inoperative and in consideration of the removal of the said Parts E and F it is agreed and understood that if the Insured sustains injuries, as described in the Insuring Clause, which injuries shall, within six months from the date of the accident, require medical or surgical treatment, confinement within a hospital or the employment of a trained nurse, the Association will pay the expense actually incurred for such treatment, hospital charges or nurse's fees, but not exceeding Five Hundred ($500.00) Dollars for any one accident.

* * *

* * *

"Employer

"Thomas L. Helms

* * *."

The complaint, in two counts, one claiming for weekly benefits and the other for medical expense, as last amended, in pertinent part recites:

'Count 1.

'Plaintiff claims of the Defendant Six Hundred Thirty and NO/100 ($630.00) Dollars, with legal interest thereon, due on a policy whereby the Defendant insured each employee of Thomas L. Helms, * * * against loss of time sustained and commencing while the said policy is in force and effect and resulting directly and independently of all other causes, from accidental injury received while the said employee is actually engaged, in the place of business of the employer, in the performance of some duty pertaining to his occupation for which he is compensated by a wage paid by the employer. * * *

'And plaintiff says that he was such employee of said Thomas L. Helms, and that he suffered such accidental injury while the policy was in force and while he was actually engaged in the place of business of the said Thomas L. Helms, in the performance of duties pertaining to his occupation for which he was compensated by a wage paid by the said Thomas L. Helms, on, to-wit: the 24th day of September 1953, at * * *. That said injury consisted of strain of his back. That he returned to work for said employer on, to-wit: the 14th day of October 1953, and while so engaged in his said employment, at the time and place aforesaid, he again injured his back on, to-wit: the 20th day of October 1953. Plaintiff alleges that on each of said occasions he was working at rolling logs down to the sawmill carriage with a peavey, and on each occasion he undertook to turn a heavy log and in straining and tugging at the said log the said peavy slipped he injured his spine.

'Plaintiff further alleges that under part 'C' of the said policy it was provided that 'If the employee, because of such injuries which do not result in any of the specific losses specified in Part D, shall be wholly and continuously disabled and under the professional care and regular attendance, of a legally qualified physician, other than himself, the Association (defendant) will pay indemnity for one day or more * * * at the rate of $18.00 per week, during the period of total disability and total loss of time, but to exceed 250 weeks for any one accident'.

'And plaintiff alleges that he suffered accidental bodily injury, as aforesaid, and that for a period of 35 weeks, * * * he has been totally disabled and has suffered total loss of time, and has been under the professional care and regular attendance of a legally qualified physician, other than himself, for and on account of the said accidental bodily injury; and that his total disability and total loss of time continues beyond the date of the filing of this suit. Plaintiff says that Defendant has had notice thereof.

'Wherefore Plaintiff sues.

'Count 2.

'Plaintiff claims of the Defendant, Five Hundred and NO/100 ($500.00) Dollars, with legal interest thereon, due on a policy whereby the defendant insured each employee of Thomas L. Helms, Rt. 2, Brundidge, Alabama, against loss of time sustained and commencing while the said policy is in force and effect and resulting directly and independently of all other causes, from accidental injury received while the said employee is actually engaged, in the place of business of the employer, in the performance of some duty pertaining to his occupation for which he is compensated by a wage paid by the employer.

'And Plaintiff further alleges that attached to and made a part of said insurance policy is an 'Accident Expense Rider' whereby the Defendant agreed 'that if the insured sustains injuries, as described in the Insuring Clause, which injuries shall, within six months from the date of the accident, require medical or surgical treatment, confinement within a hospital or the employment of a trained nurse, the Association (Defendant) will pay the expense actually incurred for such treatment, hospital charges or nurse's fees, but not exceeding Five Hundred ($500.00) Dollars for any one accident'.

'And Plaintiff adopts and incorporates into this count of the complaint all of the allegations of the second paragraph of Count 1, hereinabove, as amended beginning with the words 'And Plaintiff says that he was such an employee of the said Thomas L. Holms, etc.' and ending with the words 'the injured his spine'.

'And Plaintiff says that said injury which he incurred, as aforesaid, within six months from the date of the accident, to-wit: the 24th day of September 1953, required medical and surgical treatment, confinement within hospitals and the employment of trained nurses, within the meaning of the said provision of the said 'Accident Expense Rider',...