Purcell v. Washington Fidelity Nat. Ins. Co.

Decision Date27 March 1934
CourtOregon Supreme Court

Department 1.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Action by James W. Purcell against Washington Fidelity National Insurance Company. From an adverse judgment, defendant appeals.


See also, 141 Or. 98, 16 P.2d 639.

This is an appeal from a judgment of the circuit court in favor of the plaintiff in an action instituted by him to recover indemnity upon a policy of health insurance issued by the defendant in favor of the plaintiff. The complaint alleges that June 4, 1928, the plaintiff became afflicted with an illness which has confined him to his home ever since, and that since April 1, 1930, the defendant has neglected to pay him the sums of money which its policy promises to pay in the event of a house-confining illness.

Milton R. Klepper, of Portland (Robert W. Gilley, of Portland, on the brief), for appellant.

Frank C. Howell, of Portland (Wilbur, Beckett, Howell &amp Oppenheimer, of Portland, on the brief), for respondent.

ROSSMAN Justice.

The policy of insurance which the plaintiff is seeking to enforce against the defendant contains the following provisions:

"Continuing Illness Indemnity Payable for Life.

"(1) The company will pay *** for disability resulting from diseases, *** and which confines the Insured continuously within doors and requires regular visits therein by a legally qualified physician; provided said disease necessitates total disability and total loss of time.

"Nonconfining Illness.

"(2) The company will pay *** at the rate per month of one-half of the monthly illness indemnity hereinafter specified, but not exceeding two months for disability resulting from disease, *** which does not confine the Insured continuously within doors. ***"

The sum payable under the first clause is $100 per month.

June 4 1928, the plaintiff suffered a paralytic stroke, and another in August of the same year. Following the first stroke, and until April of 1930, the defendant regularly paid the plaintiff $100 a month indemnity, but since April 1, 1930, has declined to make further payments at that rate, claiming that the plaintiff's illness no longer confines him within doors.

The assignments of error are predicated upon an order denying a motion for a nonsuit and upon the instructions to the jury. These various assignments present only one issue; whether the plaintiff's present condition is within the contemplation of the confinement clause, above quoted. We shall now review briefly the evidence.

The combined effect of the two above-mentioned strokes deprived the plaintiff of his speech for a long period of time, and still render his right leg and arm useless. For several months after August the plaintiff was continuously confined to his bed, except for an occasional short period when he reclined upon a davenport in the living room of his home. In September of 1928 efforts were made to help him regain his power of speech, and after three months he was able to utter a word or two. At the time of the trial, March 22, 1933 witnesses declared that they could not understand him unless they paid close attention. A physician testified: "Due to the fact that the hemorrhage of the brain which he had was in the region of the speech center, the speech center was involved so that if he wanted to say a word he would find that word just as easily and quickly as he would find the point he wanted to put his hand on-it wasn't there. This to him is very nerve-racking." The same witness also testified that the plaintiff's inability to express himself causes him frequently to sob. Other witnesses testified that he often cries as he contemplates his helpless condition. His wife testified that his pillow is frequently wet at nighttime, due to weeping caused by nervousness. According to the plaintiff's wife, "a good many months" after the stroke the plaintiff had progressed sufficiently so that he could shuffle about the house with the help of a cane and the assistance of a member of the family. The witnesses agree that the plaintiff is unable to get up or down stairs without help, and, according to those who testified, he is never left alone for fear that he may fall. A neighbor described his present physical condition as "totally disabled," and, when asked about his mentality, replied: "I would say that he is very much like a child." The uncontradicted testimony shows that the plaintiff rests very poorly at night; that when he is left by himself he worries, becomes nervous, despondent, and weeps. The uncontradicted testimony also shows that the plaintiff is unable to bathe and dress himself. Even now there occur periods of time when he is confined to his bed for several days in succession. A physician has attended him regularly two or three times a week since June of 1928. At some time in 1929 the plaintiff had made sufficient improvement so that on warm days he would be carried to the front porch where he remained for short periods of time. July 23, 1929, Dr. M. K. Hall, who was then attending him, advised the plaintiff's wife in a letter: "It would be very, very wise if it could be arranged to get Mr. Purcell to a change-out-door change-the seashore, for instance-It could contribute considerably to a quicker recovery." After receipt of this letter, the family made an effort to take the plaintiff to the Oregon Coast, but before they had progressed more than several miles the plaintiff became noticeably worse and it was necessary to return home. Since that time no further effort has been made to go to the Coast. However, the physicians continue to advise the plaintiff's wife to get him into the fresh air and sunshine whenever possible. One of them testified: "The idea of being out of doors is as much for the change of scenery, for improving his mental outlook as it is for the physical side of it." All of the physicians who testified agreed that getting out of doors is helpful to one in the plaintiff's condition. According to his wife, the plaintiff has been out of his home upon the following occasions: He has been to a barber shop located within one block of his home "five or six times, if that many." Once or twice he walked the distance with the help of his wife, and the other times was taken in an automobile. Upon one occasion he was taken to the home of a friend. At times he was driven two or three blocks from his home where he sat in the parked car viewing the distant mountains. On another occasion he was driven three or four blocks to a place where he could view the golf course on which he had played before his illness. Sometimes he has been taken for a ride to the business section of Portland, and at other times taken to the neighborhood motion picture theater. More than one of the witnesses described the great difficulty encountered in getting the plaintiff into the automobile. On some occasions he has been in his yard. When his wife was requested to estimate the number of times he had been taken to the motion picture theater, she replied that they were "very, very few," and that he was never able to sit through the entire performance. When asked if the total number of times the plaintiff had been out of his home would aggregate fifty, she was uncertain, but replied: "I don't think so, no, because there would be months at a time Mr. Purcell couldn't be taken out of the house. Then there would be another time when in a week I could take him out a couple of times." Some of these trips were made at night when the plaintiff, due to nervousness, was unable to sleep. His wife testified that the physicians had advised her to take the plaintiff for a ride whenever such conditions developed. She also testified that the few visits to the motion picture theater and the one to the home of a friend were for the sole purpose of trying to get the plaintiff's mind off himself and to prevent him from becoming morose. She repeatedly testified that those trips and the excursions to the yard, front porch, and the rides in the automobile were made in an endeavor to comply with the physicians' directions, adding that, since June 4, 1928, the plaintiff had been continuously confined in the house "except on the advice of physicians." Doctor Robert S. Graffis, plaintiff's physician, testified that since May, 1930, the plaintiff's condition has shown very little improvement. The plaintiff did not testify; the explanation being made that he was unable to do so. One of the physicians expressed it thus: "Mentally, he is very easily upset." Doctor Graffis described the plaintiff's condition thus: "It is very difficult for him to walk, difficult for him to use his right arm. Oftentimes he will have to take the other hand and bring it over in order to get it where he wants it. Difficult for him to talk. Oftentimes he starts to say something and he forgets entirely-or unable to say what he wants to say, and he has to be assisted around the house, and get up and down steps he has to be helped, and he has to be helped to take a bath, put in and out of the tub and taken in and out of the tub. In fact, he is unable to help himself in very many things *** I have advised him to take exercises but he gets tired out so quickly he can scarcely take any exercise. *** I have prescribed for him to take a hammer or rubber mallet and try to learn so he could hit in the same place, but he hits all over when he tried to strike the hammer." Doctor George A. Cathey described the plaintiff's present condition as follows: "Even my last call, in just talking to him, getting him to try to walk without shaking that hand or holding it he would want to weep. When he would talk to me he would apologize many times...

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