Pan Coastal Life Ins. Co. v. Malone, 8 Div. 242

• Court: Alabama Court of Appeals
• Citation: 40 Ala.App. 325,114 So.2d 277
• Docket Number: 8 Div. 242
• Parties: PAN COASTAL LIFE INSURANCE COMPANY, v. Roy MALONE.
• Decision Date: 19 May 1959

Page 277

114 So.2d 277

40 Ala.App. 325

PAN COASTAL LIFE INSURANCE COMPANY, v. Roy MALONE.

8 Div. 242.

Court of Appeals of Alabama.

May 19, 1959.

Rehearing Denied June 9, 1959.

Scott, Dawson & McGinty, Scottsboro, for appellant.

Andy Hamlet, Jr., Scottsboro, for appellee.

Counts one and two of the complaint are identical except that the first is upon policy numbered AH 7528 and the second upon policy numbered AH 7535. The first count is as follows:

'Count One: The plaintiff claims of the defendant the sum of Two Hundred Eighty Seven and 23/100 ($287.23) Dollars, due on an insurance policy, numbered AH 7528, from April 1, 1956 to July 1, 1956, whereby the defendant, on the 1st day of October, 1955 insured the plaintiff against loss resulting from bodily injury sustained during the term of the policy, effected directly and independently of all other cause through accidental means.

'The plaintiff avers that he sustained bodily injuries, through accidental means on December 12, 1955, disabling him within the meaning and terms of the said policy.

'The plaintiff avers that the premiums on the said policy have been paid and that the policy was in full force and effect at the time of the said injury. The policy is the property of the plaintiff.'

The defendant has had notice of this claim.

'By the terms of the policy, the defendant contracted to pay plaintiff the sum of One Hundred ($100.00) Dollars per month, during the period of his disability, and the plaintiff avers that he was disabled since December 12, 1955 up to July 1, 1956. That the defendant has failed and refused to make his payments for the months of April, May and June, 1956, as contracted in the aforementioned policy.'

PRICE, Judge.

This is an appeal from judgment below in favor of the plaintiff. The cause was submitted on the merits and on motion by appellee to dismiss the appeal and affirm the decision of the lower court because of the lateness of the filing of the transcript.

We find no merit in appellee's motion, since we have examined the record and find the transcript of the evidence was timely filed in the lower court and the record was filed in this court on the sixtieth day from the date the transcript of the evidence was filed in the lower court. The motion is denied.

On the merits

This is a suit by Roy Malone against Pan Coastal Life Insurance Company, a Corporation, to recover on two health and accident policies in which the appellant insured the plaintiff 'against loss resulting solely from bodily injuries sustained during the term of this policy effected directly and independently of all other causes through accidental means.' The complaint consisted of two counts, which will appear in the report of the case.

The complaint was not demurrable for failure to aver the term of the policy, the period covered thereby, that the loss sued for occurred within the period for which the policy was issued; that the policy coverage extended to or through the time for which compensation is sought. Life Ins. Co. of Virginia v. Hanback, 250 Ala. 643, 35 So.2d 696; Inter-Ocean Casualty Co. v. Anderson, 245 Ala. 534, 17 So.2d 766; American Bankers' Ins. Co. v. Dean, 227 Ala. 387, 150 So. 333; Sovereign Camp, W. O. W. v. Gunn, 224 Ala. 444, 140 So. 410; American Bankers' Ins. Co. v. O'Neal, 25 Ala.App. 559, 150 So. 562.

The plaintiff, Roy Malone, testified that on December 12, 1955, he was involved in an accident while hauling a load of wood with a pair of mules and a wagon. One of the wheels hung on a tree, causing him to fall between the mules while his left foot was still hung in the wagon. When his foot was released he became sick at his stomach and his foot and leg began to swell and pain him and he lay beside the wagon until he felt better and then was assisted into the wagon by Henry Martin. Mr. Martin was seriously ill at time of trial and did not appear to testify in the case. On the same day plaintiff went to see Dr. Willis Sanderson, who dressed the leg where it was hurt, between the knee and foot. He saw the doctor regularly thereafter. He was unable to walk without the aid of crutches.

The plaintiff further testified that he was a farmer, a veterinarian and also traded mules. From the date of the accident until July 1, 1956, he was unable to carry out the duties of his occupation and unable to do any other kind of work.

The plaintiff introduced in evidence two health and accident policies, identified as exhibit 1, policy No. AH-7535, and exhibit 2, policy No. AH-7528. He testified the defendant had paid $726 on the two policies, compensation through March 30, 1956, but failed and refused to pay compensation for April, May and June.

The plaintiff testified on cross examination that he went to see Dr. Sanderson regularly, but kept no record of his visits. On the day of the accident he used a pair of homemade crutches to get to the doctor's office and the doctor loaned him a new pair of crutches to go home on. A part of the duties pertaining to his occupation as a veterinarian consisted of giving shots with a hypodermic needle to hogs; treating cows for bloat; sewing up a pig that had been stepped on by its mother; giving mules shots; pouring something from a bottle down a sick mule; lancing a sow's foot. He stated he went to Luther Millican's and gave a sick sow a penicillium shot; that he gussed he went to Johnny Bailey's house and ran a piece of water hose down a bloated cow's throat; that he sewed up a hole in a pig, which Mr. Bailey brought to his house; that he didn't know whether he did these things after the accident. He thought it was after July 1st the he went to see a sick mule belonging to S. C. Rooks; that he did not treat a sick cow for Mr. Rooks between the time of the accident and July 1st, but did treat one not long before the trial; that Mr. Grady Sims brought a dog to his place for treatment but he couldn't remember the date; that he did not remember lancing an infected foot on Mr. Sim's hog; that a part of his duties in trading mules is catching them and showing them to people, but he did not catch mules and bring them out of the barn to show them to Mr. Brown.

Dr. Willis Sanderson testified he treated plaintiff at his office on December 12, 1955; that he had an excoriation of the skin, which means a severe abrasion. The excoriation was about two inches in diameter and he had a large hematoma and swelling of the midshaft of the left lower leg. A hematoma is a blood clot underneath the skin. It is caused by a blood vessel having been broken and the blood backs up and makes a pool under the skin. The doctor testified he applied a dressing and administered drugs. He next saw Mr. Malone on December 16. At that time he had a large hematoma. It was the same clot but it had become larger in size. He drained the blood clot and inserted a rubber drainage tube. He saw plaintiff again on December 19 and redressed his leg and gave him more drugs; that he saw him again on December 23 and his leg seemed to be improving. He saw him again on January 9, 1956, at which time he had developed a thrombophlebitis or blood clot in the same lower leg. This blood clot was in a vein that goes straight down the back of the leg; that at that time he applied an elastic stocking and gave him an antibiotic. He saw him again on January 16, at which time the leg was swollen, but the blood clot was under control. Dr. Sanderson testified that during the entire time he was treating him plaintiff had a very tender left ankle, which pained him when he walked on it, and witness recommended X-rays. The X-rays showed no broken bones or fractures. On January 20 he placed Mr. Malone's leg in a walking cast. On February 10, he repaired the cast and noticed the toes were still swollen. On March 2nd he removed the cast and applied an elastic stocking. On March 8 he made an appointment for plaintiff with Dr. Killefer, of Chattanooga. Dr. Killefer is an Orthopedist, a specialist in the diseases of the bone, joints and muscles. Witness saw plaintiff again on April 3, April 20, and May 10th. He was still on crutches and his condition was unimproved. On June 3rd his condition was still unimproved. No treatment was given on that occasion. Dr. Sanderson was on vacation and away from the office during the entire month of July. On August 2nd his condition was still unchanged. The doctor stated he was familiar with the duties of a farmer and of a veterinarian and that in March, April, May and June of 1956 Mr. Malone was on crutches and, 'I don't see how he could carry out the usual duties of a farmer if he was on crutches', and 'I don't know and don't see how a man, if he is a veterinarian, how he could carry out the duties of a veterinarian and be on crutches.'

On cross examination Dr. Sanderson testified the second time he saw plaintiff was December 16, and the next was December 19, when the drain was removed. Since the transcript of his testimony before a court reporter prior to trial shows that he answered 'no' to the question: 'q. This thrombophlebitis was not the result of the injury?', he apparently made such statement, but he doesn't know why he would have said a thing like that. He remembered stating to defense counsel, either before the court reporter or on a different occasion, that thrombophlebitis very often occurred from an injury and also from surgery. If he were asked if thrombophlebitis could be the result of an injury he would definitely say 'yes'.

He saw plaintiff four times in January. By January 16th there was nothing wrong with his leg as a result of the injury, as far as the naked eye could reveal. When he first examined Mr. Malone he found nothing wrong with the ankle, but as the skinned place and the incision made to remove the blood clot healed he began to complain of pain in his ankle. He could find nothing about his injuries to cause pain or injury to his ankle. In order to determine if there was something wrong with the...