New Amsterdam Casualty Co. v. Perryman

• Decision Date: 21 March 1932
• Docket Number: 29596
• Citation: 140 So. 342,162 Miss. 864
• Court: Mississippi Supreme Court
• Parties: NEW AMSTERDAM CASUALTY CO. v. PERRYMAN

140 So. 342

162 Miss. 864

NEW AMSTERDAM CASUALTY CO. v. PERRYMAN

No. 29596

Supreme Court of Mississippi

March 21, 1932

Division A

1 INSURANCE.

Parties may execute binding insurance contract which, however stringent it may be, will be enforced unless opposed to public policy or statute.

2 INSURANCE.

Accident policies, using chosen language and apt terms to avoid liability under circumstances specified, are construed strictly against insured.

3 EVIDENCE.

Court takes judicial knowledge of fact that quinine is regarded as a medicine.

4. EVIDENCE.

It is common knowledge that quinine is administered for chills.

5. INSURANCE. Where insured, acting on free advice of family physician whom he met on street and questioned concerning remedy for chills, took quinine, but advertently took overdose, paralysis allegedly resulting therefrom held disability caused by medical "treatment" within exception in accident policy.

Policy in question provided that it should not cover disability caused directly or indirectly by medical or surgical treatment, except that necessitated by injuries covered by policy. "Treatment" is denned as act or manner of treating; management; handling; usage.

HON. W. A. ALCORN, JR., Judge.

APPEAL from Circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Action by George R. Perryman against the New Amsterdam Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

John W. Crisler, of Clarksdale, for appellant.

So far as we have been able to find, there are only two decided cases in the United States wherein the same language of accident policies as here used was construed under similar facts. In both cases, the insured was held not to have suffered such disability or death as would permit recovery.

Bayless v. Traveler's Insurance Company, 2 F. Cases 1079 (14 Baltchf. 143, case No. 1138); Westmoreland v. Preferred Acc. Ins. Co., 75 F. 244.

Accident policies may also except death or disability caused wholly or in part from medical or surgical treatment. Under such an exception the insured was not liable where death was caused by an overdose of opium prescribed by a physician in proper doses.

6. Cooley's Briefs on Insurance 5309.

If a policy of insurance provides that the company will not be liable for death caused wholly or in part by medical treatment for disease, it will not be liable where the insured by accident or inadvertence takes a larger quantity of the medicine prescribed for him than is specified and death results therefrom.

6 Cyclopedia of Insurance by Couch, sec. 1250.

Appellant's motion for a peremptory instruction should have been granted.

In order to bring a case within the exception of the policy we take it, there is no necessity for showing any formal arrangements made by the patient with his physician; the necessity for entering a hospital or being visited by a physician for a great length of time. The matter of forming the relation of physician and patient is one of fact, and, by the allegations of the declaration itself, the relation existed in this case beyond peradventure.

Our supreme court has held, in line with the courts of last resort of every jurisdiction that "the policy is the contract" and "the contract controls."

N. Y. Life Insurance Co. v. Alexander, 122 Miss. 813; Fidelity Mutual Insurance Co. v. Oliver, 111. Miss. 133, 71. So. 302.

Smith & Cutrer and Ed Smith, all of Clarksdale, for appellees.

The declaration states a cause of action.

We do not believe that under the doctrine prevailing in our state and in the courts of other jurisdictions, the facts presented by this record disclose such a relationship, that it might be said that the appellee was under the "treatment" of a physician, at the time of the accidental injuries here complained of.

It has been the policy of the courts of our state, and the courts of every competent jurisdiction in this country, to construe contracts of insurance more strictly against the insurer and in favor of the insured.

McMaster v. New York Life Insurance Co., 183 U.S. 25, 46 L.Ed. 64; Marine Insurance Co. v. McClanahan, 490 F. 695; Aurnhammer v. Brotherhood Acc. Co., 250 Mass. 563, 146 N.E. 47; Eminent Household of Columbian Woodmen v. Bunch, 115 Miss. 512, 76 So. 540; Manhattan Life Insurance Co. v. Parker, 85 So. 298, 204 Ala. 313.

It is in accordance with the rules thus enunciated that courts in similar cases have held that similar facts, as in the cause at bar, were not such facts, as might be termed facts that would constitute "treatment" within the meaning of the "exception" clause.

Modern Woodmen of America v. Miles, 178 Ind. 105, 97 N.E. 1009.

Webster's Dictionary, and we know of no better authority, defines the word "treatment," as the act or manner of treating, management; usage. We do not think that it can be said that the appellee was, therefore, under the treatment or rather management of a physician.

A mere periodical examination by a physician and attendance for influenza do not constitute "medical attention" with the meaning of the terms of an application for insurance against accident.

Fidelity & Casualty Company of New York v. Cross, 111 Miss. 632, 95 So. 631.

According to the uniform holdings of all courts in this country, the case at hand would not come within the "exception" mentioned in the Bayless case. This upon the broad ground that all of the decisions in this country hold that medical or mechanical treatment for disease implies an ailment, that is permanent in nature, as distinguished from an ailment that is merely temporary. We take it that under the authorities, chills would not be defined as such ailments as constitutes "disease" within the meaning of the "exception" clause, mentioned in the Bayless and Westmoreland cases.

Peterson v. Modern Brotherhood of America, 101 N. W. 289, 67 L. R. A. 631; Preferred Acc. Ins. Co. of New York v. Nuir, 126 F. 926, 61 C. C. A. 456; Demoines Life Ins. Co. v. Clay, 89 Ark. 230, 116 S.W. 232.

Though counsel frankly admits he was unable to find them, there are many authorities, contrary to the contention urged by him.

United States Mutual Accident Association v. Barry, 131. U.S. 100, 33 L.Ed. 60; Travelers Insurance Company v. Murray, 25 Am. St. Rep. 267; Railway Mail Ass'n v. Dent, 213 F. 981; Western Commercial Travelers' Ass'n v. Smith, 29 C. C. A. 223, 85 F. 401, 40 L. R. A. 653; Omberg v. Mut. Ass'n, 101. Ky. 303, 40 S.W. 909, 72 Am. St. Rep. 413; Dezell v. Fidelity & C. Company, 176 Mo. 253, 75 S.W. 1102; Beile v. Traveler's Protective Association, 155 Mo. 629, 135 S.W. 497; Bernays v. U. S. Mut. Acc. Association, 45 F. 455; Kennedy v. Aetna Life Insurance Company, 31. Tex. Civ. App. 509, 72 S.W. 602; Metropolitan Acc. Asso. v. Frioland, 161 Ill. 30, 43 N.E. 766, 52 Am. St. Rep. 359; Travelers Insurance Co. v. Dunlap, 160 Ill. 642, 43 N.E. 765; Interstate Business Men's Accident, Ass'n v. Lewis, 257 F. 241.

The state of facts relied upon by plaintiff do not fall within the purview of the exception clause in the insurance policy.

Vernon v. Iowa State Traveling Men's Association, 138 N.W. 696; Mutual Life Insurance Company of New York v. Dodge, 11 F. 486.

This court will never reverse or set aside the verdict of the jury, if there is any substantial evidence to sustain its verdict, even though the evidence is materially conflicting. In this case appellee introduced direct evidence and at most appellant introduced the most unsatisfactory opinion evidence from physicians, who had never examined appellee.

Cox v. Tucker, 133 Miss. 278, 97 So. 721.

OPINION

McGowen, J.

Perryman, the appellee, sued the New Amsterdam Casualty Company, the appellant, on a contract of accident insurance. The policy of insurance was made an exhibit to the declaration. A demurrer was interposed thereto and was overruled by the court, and the case proceeded to trial, resulting in a judgment for the amount of the demand, from which appeal is prosecuted by the casualty company.

The contract undertook to insure appellee "against loss resulting solely from bodily injuries, effected directly and independently of all other causes, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), as specified in the following schedules, respectively, subject to the provisions and limitations hereinafter contained." There then followed the schedule and restrictive clauses of the policy. As a part thereof, under the heading "Other Provisions," appears the following: "(c) This insurance shall not cover accident, injury, disability, death or other loss caused directly or indirectly by medical or surgical treatment except such as may result directly from surgical operations made necessary solely by injuries covered by this policy and performed within ninety days after date of accident."

As the facts state a stronger case for appellee than his declaration, we shall...