National Life & Acc. Ins. Co. v. Bradley

• Decision Date: 18 October 1932
• Citation: 245 Ky. 311
• Parties: National Life & Accident Ins. Co. v. Bradley.
• Court: United States State Supreme Court — District of Kentucky

245 Ky. 311

National Life & Accident Ins. Co. v. Bradley.

Court of Appeals of Kentucky.

Decided October 18, 1932.

1. Insurance — Evidence showed insurer's denial of liability after three years and waiver of terms of accident policy respecting proof of disability.

2. Insurance. — Term "disabled from performing work of any nature" in accident policy should not be construed strictly or literally.

3. Insurance. — Under accident policy covering disability from performing work of any nature, insured was entitled to insurance where disabled in material degree from carrying on his business of farming.

4. Insurance. — In action on accident policy, whether insured was disabled in material degree from carrying on business of farmer held for jury.

5. Trial. — Court need not, in civil action, give whole law of case or instruct on any point, unless requested to do so.

Appeal from Mercer Circuit Court.

C.E. RANKIN for appellant.

WM. S. SANDIFER, Jr., and E.W. DRAFFEN for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

By its insurance policy issued to the appellee, Thomas N. Bradley, the appellant covenanted to pay him $7 a week "for each day that the insured is by reason of accidental injury, of which there is external evidence, disabled from performing work of any nature, provided such disability is not less than four consecutive days and a certificate of a duly licensed and practicing physician is furnished as hereinafter provided. The total number of days for which benefits will be paid under this policy is limited to One Hundred and Forty (140) during any twelve consecutive months."

It was further stipulated:

"The insured shall not be entitled to any benefits for sickness or accident under this Policy unless a certificate on the Company's form by a regularly licensed and practicing physician who is satisfactory to the Company, showing the nature of the sickness or injury, shall first be furnished the Company or its authorized agents; and if the sickness or accidental disability of the insured shall continue for more than one week, a like certificate must likewise be furnished at the beginning of each week of sickness or accidental disability. No liability for sickness or accidental disability shall begin to accrue under this Policy for any week until such certificate is received as above set forth; provided, however, that certificates received within two days following the visit of the physician will be dated for payment to correspond with such visit. The Company will not accept as proof of sickness the certificate of a physician who has not actually attended the insured at his bedside and there must be an actual attendance for every certificate filed."

The insured had his leg broken in two places between the knee and ankle in December, 1923, by a gasoline engine falling upon him. The stipulated certificates of injury were filed and the company paid indemnity for three years, until December 18, 1926, when it took the position that Bradley was no longer "disabled from performing work of any nature." Early in 1931 Bradley sued for the unpaid indemnities of $120 a year for three years. The petition alleged the plaintiff's disability in the language of the policy, and averred that he had furnished certificates during 1927, and was notified by the company's agent that no further ones were necessary, and by reason thereof none was furnished. The answer put in issue the disability of the plaintiff and the liability of the company. It traversed the allegation that it had denied liability and had given notice that no further certificates were necessary. It also pleaded that the plaintiff's condition was caused by a willful refusal to permit proper and efficient medical treatment.

Judgment having gone in favor of the plaintiff for $560, the company claims the right to a reversal because it was entitled to a peremptory instruction based upon failure to prove that the nature and extent of the disability was as prescribed in the policy and the failure of Bradley to furnish the weekly certificates of his condition, and because of the failure of the court to give an instruction under the plea that his condition was due to his own neglect in the treatment of his injuries.

The plaintiff testified that after three years the company's agents refused to supply him with blank certificates so that he could make the necessary proof. The contract provided that they were to be "on the company's forms." He also testified that the reason assigned for refusing him those forms was that he was able to go to work. However, it seems he did secure and send in some certificates after 1926, but they were not recognized. This and other evidence not necessary to relate was in no way controverted. It abundantly proves a denial of liability and a waiver of the terms respecting proof of disability. Wortham v. Illinois Life Insurance Company, 107 S.W. 276, 32 Ky. Law Rep. 827; AEtna Life Insurance Company v. Bethel, 140 Ky. 609, 131 S.W. 523; Continental Insurance Company v. Turner, 222 Ky. 608, 1 S.W. (2d) 1063.

The appellee was at the time of the trial fortyeight years of age and weighed 240 pounds. The upper fracture of the leg had apparently healed, but in the lower one the bones had become...