Penrose v. Commercial Travelers Ins. Co.

• Decision Date: 29 October 1954
• Docket Number: No. 8129,8129
• Parties: Wayne C. PENROSE, Plaintiff-Respondent, v. COMMERCIAL TRAVELERS INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 969

275 P.2d 969

75 Idaho 524

Wayne C. PENROSE, Plaintiff-Respondent, v. COMMERCIAL TRAVELERS INSURANCE COMPANY, a corporation, Defendant-Appellant.

No. 8129.

Supreme Court of Idaho.

Oct. 29, 1954.

Merrill & Merrill, Pocatello, for appellant.

Anderson & Anderson, Pocatello, for respondent.

THOMAS, Justice.

Plaintiff, hereinafter referred to as respondent, instituted an action to recover monthly sick benefit payments under an insurance policy issued to him on November 15, 1945, by defendant, hereinafter referred to as appellant. The matter was tried before a jury. At the close of the evidence appellant made a motion for nonsuit and respondent moved for a directed verdict, whereupon the court discharged the jury and made its findings of fact, conclusions of law and entered judgment for respondent. From judgment for respondent in the sum of $1,700, together with attorneys' fees in the sum of $500 and costs, this appeal was taken.

Both parties treated the material facts as without dispute and to the effect that there was no issue for the jury and it was proper for the court to decide the case upon the undisputed material facts and the law to be applied thereto.

There are two decisive questions submitted before this court on appeal: First, whether or not respondent comes within the provisions of Part D, section 1 of the policy with reference to house confining sickness or Part D, section 2, with reference to the convalescence clause thereof; secondly, whether under the terms of the insurance policy respondent, to whom the court allowed attorneys' fees in the sum of $500, is entitled to any attorneys' fees under Chapter 289, Session Laws of 1951.

Part D of the policy appertaining to monthly sick benefits provides as follows:

'Confining Sickness

Sec. (1). If such sickness shall wholly and continuously disable the Insured from performing any and every duty pertaining to his business or occupation, and shall necessarily and continuously confine him within the house, the Company will pay the Sickness benefit at the rate per month specified in Part A 2.

'Convalescence Clause

Sec. (2). Or, for the period not exceeding one month, immediately following said confinement, or by reason of any nonconfining sickness during which the Insured shall be wholly and continuously disabled from performing any and every duty pertaining to his business or occupation, the Company will pay the Sickness benefit at the rate per month specified in Part A 2.

'Provided that benefits under this Part shall not be paid in excess of the time the Insured is under the regular attendance of a legally qualified physician or surgeon and benefits payable shall commence after one week of disability.'

Part I, Paragraph 5, of Miscellaneous Provisions also provides:

'The phrase 'regular attendance of a legally qualified physician or surgeon' as used herein, shall be defined to mean visits of, or personal treatments by the physician at least once in every seven days.'

Chapter 289, page 621, 1951 Session Laws, provides in pertinent part as follows:

'Section 1. Any company, corporation, * * * issuing any policy, * * * of insurance, * * * of any kind or nature whatsoever, firm shall fail to pay to the person, firm or corporation entitled thereto the amount justly due under such policy, certificate or contract, shall, in any action in any court in this state for recovery under the terms of such policy, certificate or contract, pay such further amount as the court shall adjudge reasonable as attorneys' fees in such action. In any such action, if it shall be alleged that before the commencement thereof, a tender of the full amount justly due was made to the person, firm or corporation entitled thereto, and such amount be thereupon deposited in the court, and if the allegation be found to be true, or if it be determined in such action that no amount is justly due, then no such attorneys' fees may be recovered.

'Section 2. The provisions of this Act shall not apply to any action commenced before the effective date hereof.

'Approved March 22, 1951.'

Respondent is a farmer and liverstock raiser, farming approximately 575 acres of land at Cambridge, Idaho, which is three miles north of Downey, Idaho. On May 3, 1952, respondent suffered a heart attack, diagnosed as coronary occlusion, and was confined to the hospital at Downey from May 5, 1952, to June 5, of the same year, under order of the doctor who attended him at all times thereafter to and including the time of the trial which was held on the 5th day of October, 1953.

Upon his release from the hospital and pursuant to the directions and orders of his attending physician he was taken to the home of his father for a week or ten days where he was continuously confined, and was thereafter moved to his own home.

Under and pursuant to the terms of the policy appellant paid respondent $300 for the period he was confined in the hospital and later tendered him an additional $200 for a period of one month under the convalescence clause thereof, which respondent refused to accept. The policy has a total limitation on payments of $2,000; hence the maximum which respondent could recover was $1,700 additional, at the rate of $200 a month for the next eight and one-half months following his release from the hospital, that is, up to and including February 20, 1953.

About three weeks after his release from the hospital or in the neighborhood of July 1st he left the house for limited excursions out on the lawn where he would sit down; at times he gave instructions with reference to the farm work to his two sons, one 12 years of age and the other 14 years of age at the time of the trial; the record indicates that much of the heavy farm work was done by respondent's father, other relatives, friends, and neighbors as the boys were too young to carry on this responsibility; while the time is not fixed with any definiteness, respondent would go to Downey once in a while in the family car which was usually driven by his wife and infrequently by himself; his doctor made three or four calls at the home and at all other times he went to the office of the doctor in the family car, driven by his wife on most occasions; he went to the doctor's office at least once a week for about two months; thereafter, during the balance of the time it is claimed he was confined under the house confining clause of the policy, no dates being fixed with exactitude, he went to the office of his doctor at least once a month.

Prior to his affliction, respondent attended church regularly and was active in church work; after his affliction he never attended church until sometime in the month of October and thereafter attended one service on each Sunday whenever he felt his strength would permit. Whenever he went to Downey, apparently to see his doctor, or if for any other reason, the record being very indefinite as to the time or the number of trips to Downey except to visit his doctor, he would occasionally drop in and sit down for a few minutes' visit with business friends.

On October 22, 1952, he sold a horse and at that time was out in the pasture for a brief period of time while his two boys were catching the horse which he led to the barnyard. Again, that same month he set the grain drill, a very simple and easy task, so his boys could drill the fall wheat.

In the month of October 1952, respondent accompanied another party, traveling by car, to Logan, Utah, where he had a brief visit with a friend, being away from home but a few hours; on one occasion, the time not being sixed, he went to Pocatello with a neighbor; sometime just before Christmas his wife took him to Pocatello in the family car which she drove and while they were there he visited his sister for about three hours before they returned home; on December 12, 1952, at the request of his doctor, he went to Salt Lake to see a heart specialist and was gone two or three days, staying at the home of his aunt and in her house most of the time. His wife accompanied him, doing all the driving in the family car; again on February 10, 1953, he attended a 4-H Club banquet in Pocatello. On this occasion he accompanied a neighbor and the sons of both parties.

In the months of February and March, 1953, he drove his tractor in the field some days while his wife fed the livestock; his wife did all the work in connection with feeding the stock during this time except driving the tractor. These efforts consumed about ten minutes of respondent's time during the days he drove the tractor.

Sometime early in the spring of 1953, it could have been either before or after February 20, 1953, the date not being fixed, he apparently made one visit to a bank in Downey in connection with the sale of his crop of the previous fall.

In May, 1953, which period is beyond the questioned period covered by the policy, respondent was summoned on the federal jury at Pocatello; he was taken to Pocatello by his wife and was, because of his health, excused from jury service.

On practically every occasion that respondent left his house, particularly on those occasions when he went to town or to Pocatello, Idaho, Logan, Utah, or Salt Lake City, Utah, he went with the knowledge and approval of his attending physician who advised him at the time he became afflicted and at times thereafter that he should refrain from any farm work in 1952 as far as heavy work goes and prescribed confinement to his bed and to his home for a period of the first six months with a gradual increase of activities thereafter as his strength and health would permit, including advice to go out in the air and get mild exercise; he had experienced little if any change in his physical condition from the time he was in the hospital to the time of the trial in October, 1953.

From the record there is no doubt but that the affliction of respondent wholly and continuously disabled him from performing any and every duty pertaining to his...