Mutual Benefit Health & Accident Association v. Murphy

• Decision Date: 25 March 1946
• Docket Number: 4-7861
• Citation: Mutual Benefit Health & Accident Association v. Murphy, 209 Ark. 945, 193 S.W.2d 305 (Ark. 1946)
• Parties: Mutual Benefit Health & Accident Association v. Murphy
• Court: Arkansas Supreme Court

193 S.W.2d 305

209 Ark. 945

Mutual Benefit Health & Accident Association v. Murphy

No. 4-7861

Supreme Court of Arkansas

March 25, 1946

Appeal from Sebastian Circuit Court, Ft. Smith District; J. Sam Wood, Judge.

Affirmed.

Malcolm W. Gannaway and Robert M. Gannaway, for appellant.

David L. Ford, for appellee.

OPINION

Holt J.

September 7, 1944, appellee, Tom B. Murphy, sued appellant, Insurance Company, on a health and accident insurance policy.

He alleged in his complaint that on March 14, 1940, appellant issued and delivered to him its policy of health and accident insurance under the terms of which appellant agreed to pay $ 80 per month for total disability necessitating total loss of time and which confined appellee within doors.The policy was made a part of the complaint.He further alleged that he became disabled and confined in April, 1941, from tuberculosis; that appellant paid appellee $ 80 per month from April, 1941, to July, 1944, at which time appellant ceased payments.It was further alleged that from July 1 1944, until the filing of this suit, appellee had suffered total loss of time from work, had been totally disabled and confined within doors under the terms of the policy and that appellant was due appellee $ 80 per month from July 1, 1944 until the date of the trial.

Appellant answered with a general denial.

Upon a trial, June 8, 1945, the jury returned the following verdict: "We the jury find for the plaintiff full recovery in the amount of $ 80 per month from July 1, 1944, for total disability."Upon this verdict, judgment was entered in the amount of $ 880, 12% penalty, and for an attorney's fee in the amount of $ 250.This appeal followed.

The policy of insurance contained the following provisions: "Part K. Confining Illness Benefits for Life.The Association will pay, for one day or more, at the rate of forty ($ 40) dollars per month for the first fifteen days and at the rate of eighty ($ 80) dollars per month thereafter for disability resulting from disease, the cause of which originated more than thirty days after the effective date of this policy, and which confines the insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.Part L. Non-Confining Illness Forty Dollars per Month.The Association will pay, for one day or more, at the rate of forty ($ 40) dollars per month, but not exceeding three months, for disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy, and which does not confine the insured continuously within doors, but requires regular medical attention; provided said disease necessitates total disability and total loss of time."

The record reflects that appellee became totally disabled from tuberculosis in April, 1941.Prior to that time, he had been engaged principally as a football coach and athletic director.He had a wife and three children and was about 35 years of age at the time this suit was tried.

May 1, 1941, appellant began paying appellee benefits in the amount of $ 80 per month under the terms of the policy.These payments were continued until February, 1942, when appellant ceased further payments.Thereupon, appellee brought suit against appellant in the Sebastian circuit court, Fort Smith District, to recover monthly payments alleged to be due under the terms of the policy, and on June 22, 1942, upon a jury trial, there was a verdict in favor of appellee for monthly payments in the amount of $ 80 per month from February 1, 1942, to date of trial.On the verdict, judgment was entered against appellant in the amount of $ 400, together with 12% penalty and an attorney's fee of $ 150.There was no appeal from this judgment.

After paying this judgment, appellant renewed payment of the monthly benefits for total disability in the amount of $ 80 per month which it continued to pay until July 1, 1944, at which time appellant again ceased to make further payments, whereupon appellee brought the present suit.

For reversal, appellant first argues that the testimony was not sufficient to support the jury's verdict.Specifically, it is appellant's contention that before appellee would be entitled to recover benefits under the provisions of the policy, supra,he must show that "the disease continuously confines him within doors and requires the regular visits therein by a regularly qualified physician; the disease necessitates total disability, and the disease necessitates total loss of time," and that appellee has failed to make such showing.It is practically undisputed here that appellee has had active tuberculosis since 1941 when he was admitted to the State Sanatorium in Booneville, and that his condition on the date the present suit was tried, showed no improvement.Two eminent physicians so testified.Dr. J. D. Riley, Superintendent and Medical Director of the State Tuberculosis Sanatorium at Booneville testified that he first met appelleeApril 30, 1941, when he examined him."I examined him and found that he had tuberculosis and advised his admission to the Sanatorium. . . .Q.Doctor, you testified in this case on June 22, 1942?A.I did.Q.At that time, state whether or not Mr. Murphy was an inmate of the institution of the Sanatorium.A.He was a patient of the Sanatorium at that time.Q.How long did he continue to be confined in the Sanatorium?A.He was confined at the Sanatorium until April 19, 1943, when he was permitted to leave on an extended leave of absence. . . .I explained to Tom that if he could have adjusted himself mentally to taking the cure that I would have preferred that he remain in the Sanatorium in bed, which he had done for about nine months, at the end of which time he was not in as good condition as before.Even though he had not taken physical exercise he could not rest mentally, and his mental anguish prevented improvement, and I believed that some liberties on his part outside of the institution and mild activities were necessary for the condition of his mind."

Beginning with May, 1941, and up to and including May 20, 1945, Dr. Riley made twenty-three X-ray pictures of appellee's lungs.In 1941, three pictures were made in May, one in July, one in September, one in December, and in 1942, one in February, one in April, one in June, one in August, one in November, and in 1943, one in January, one in March, one in April, one in June, one in August, one in October, and in 1944, one in January, one in April, one in August, and one in October, and in 1945, one in January and one in May.In explanation of the picture made May 20, 1945, a few days before the trial, Dr. Riley testified: "Q.Now, compare the last picture with the one you made June 2, 1942, and tell the jury what change, if any, has taken place in his condition, either for the better or worse.A.This (inserting picture) is his picture taken in June of 1942.You see the elevation of the diaphragm.Now, if you will look at this white marking in the upper part of the picture here, comparing this area of the dark with the better lung tissue, and then if you will look at this (inserting another picture) you will see that the white marking remains there just the same, with no essential change.His condition so far as his lungs are concerned is about the same that it was in June of 1942, but his general condition is much unimproved because of the development in the meantime of paralysis agitans. . . .This, his last picture, was taken May 20, '45, and shows no apparent change, but shows far advanced tuberculosis and the paralysis of the right diaphragm. . . .In my opinion he is totally and permanently disabled."

Dr. W. F. Rose corroborated Dr. Riley's testimony.It was his opinion that appellee was totally and permanently disabled and that his condition at the time of the trial was a great deal worse than when he saw appellee a year ago.

It is undisputed that about a year prior to the date of trial, appellee procured a contract with a life insurance company to sell insurance and opened an office in Fort Smith, across the hall from that occupied by Dr. Rose.It also appears in the testimony of H. R. Parker, representative of appellant, that appellee, Murphy, sold insurance for appellant while being paid by appellant $ 80 per month for total disability.Quoting from appellant's brief: "He(H. R. Parker) testified that appellee had a contract with appellant in 1941 and 1942 and wrote some insurance for appellant while he was being paid eighty ($ 80) dollars per month by appellant. . . .That in paying appellee at the time he was trying to write a little insurance that he was trying to assist appellee."

Appellee's territory with the Life Insurance Company covered thirteen counties and he managed to sell a number of policies, substantially supplementing his income over the monthly payments from appellant.During all of this time, he was under the care of Dr. Riley.Dr. Rose testified that for twelve months prior to the date of trial, he had seen appellee professionally once or twice a week.

It thus appears from the above abstract of the testimony that prior to the time that appellee contracted tuberculosis, his vocation was that of athletic director and football coach which required that appellee be both physically and mentally active.He can no longer follow his vocation.After some nine months of confinement in the sanatorium, upon the advice of his physician, he was permitted to leave the hospital for the reason that appellee's "mental anguish prevented improvement, and I believed that some liberties on his part outside of the institution and mild activities were necessary...