Raulston v. Mutual Ben. Health & Acc. Ass'n

• Citation: 118 S.W.2d 881,22 Tenn.App. 101
• Parties: RAULSTON et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.
• Decision Date: 15 January 1938
• Court: Tennessee Court of Appeals

118 S.W.2d 881

22 Tenn.App. 101

RAULSTON et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

January 15, 1938

Petition for Certiorari Denied by Supreme Court May 27, 1938.

Appeal from Chancery Court, Marion County; T. L. Stewart Chancellor.

Suit for sick benefit under health and accident policy by F. P Raulston and others against the Mutual Benefit Health & Accident Association. Decree for defendant, and plaintiffs appeal assigning error.

Reversed decree entered in favor of plaintiffs, and cause remanded with directions.

Raulston & Raulston, of South Pittsburg, for complainants.

Sizer, Chambliss & Kefauver, of Chattanooga, for defendant.

LLOYD S. ADAMS, Special Judge.

The original bill in this cause was filed in the Chancery Court of Marion County, Tennessee, by the complainants as guardian of William M. Raulston, seeking to enforce payment under a health and accident insurance policy issued to William M Raulston, the assured, by the defendant Association in January, 1933, providing for payment of monthly indemnity of $25 for total loss of time due to a non-confining illness, which totally disabled the assured. It is averred that William M. Raulston became disabled by reason of nephritis and high blood pressure on or about the 20th day of June, 1936, and since that time has been unable to perform any physical labor and follow any gainful occupation.

The defendant answered admitting the issuance of the policy, but denying liability on two grounds: (1st) That the said William M. Raulston was not totally disabled within the meaning of the policy; (2nd) that if he was disabled, his disability was due to a mental derangement, and that under the terms of the policy no recovery could be had.

Defendant's answer was later amended interposing the further defense that the insurance policy expressly excepts any disability suffered by the assured "while suffering from insanity or mental infirmity", and avers that the alleged disability, which is the subject matter of the suit, arose and occurred during the time the assured was suffering from insanity or mental infirmity, and that under the express condition of the policy of insurance, there was no liability upon the part of the insurer for said alleged disability.

The Chancellor found and decreed that the assured, William M. Raulston, is totally disabled within the meaning of the section of the insurance policy upon which the suit was brought, but that he is not entitled to recover because the disability upon which the suit was brought occurred while the insured was suffering from insanity or mental infirmity, as provided under "Additional Provisions", Section (a), which will be hereinafter quoted, and the original bill was accordingly dismissed at complainants' cost.

Complainants prayed and were granted an appeal, and have assigned the following errors:

I. The court erred in holding and decreeing that the insured was not entitled to recover under the provisions of the policy.

II. The court erred in holding that the proper construction of section a of "Additional Provisions" of the policy would preclude recovery by one who became mentally infirm by reason of his physical disability.

III. Under the proof in the case showing that nephritis or Bright's Disease, alone, from which the insured was suffering, would incapacitate him from carrying on a gainful occupation, it was error for the court to hold that subsequent mental infirmity due to that disease would preclude a recovery under the provisions of section a of "Additional Provisions" of the policy.

IV. The court erred in holding that a true construction of the provision. "This policy does not cover death, disability, or other loss sustained while suffering from insanity or mental infirmity" is: "This policy does not cover death, disability, or other loss maintained while suffering from insanity or mental infirmity", and that the word "maintained" might be substituted for the word "sustained", and further holding that such words might be used interchangeably without affecting the true meaning of the policy.

Complainants' principal witness, Dr. S. N. Anderson, a resident of South Pittsburgh, Tennessee, who has been practicing his profession since his graduation from Vanderbilt in 1915, testified that he had known William M. Raulston practically all his life; that he examined the assured in the early part of June, 1936, and at which time he was suffering from nephritis, and that he had treated him weekly since that time; that his blood pressure was high but that was caused by the kidney trouble; that the assured's loss of weight was due to the kidney ailment; and that the assured was eccentric and not mentally normal, but that he would not say he was insane; that his mental condition was attributable to the diseased kidneys; that if the assured's mind was normal his physical disability alone would prevent him from carrying on a gainful occupation.

The testimony of Dr. Anderson is corroborated by Dr. J. D. Henderson and Dr. E. S. Clayton, both of Knoxville. All these witnesses testified in substance that the kidney trouble was the primary cause of the disability and the mental condition was secondary.

Defendant's witness, Dr. Killebrew, of Chattanooga, a neurologist, testified that he made a thorough examination of the assured and that he found no pus cells or infection from either kidney, but did find a slight trace of albumin, and in a general way contradicts the finding and diagnosis of the doctors introduced by complainants, but on cross-examination testified as follows:

"Q. Doctor, if this patient had been strong physically, able to carry on his usual work up until June of last year, or some time prior thereto, and since that time his condition has been such he could not do any work that required physical exertion, you would say there was something wrong with him, wouldn't you? A. Yes, if, on that physical exertion, it showed definite evidence, by urinary findings, that there was an increase of his albumin and other urinary trouble. In that type of case it is almost impossible, without that period of observation, to know exactly what degree he had in kidney impairment, if any. That type of patient, if he lived right here in town where you could observe him over a period of time, you could determine to what degree his albuminuria was significant, or to what degree it impaired his health, or whether it was a potential menace to his health; but from one examination the only thing I can tell you is that there is no urological finding there sufficient to justify disability at the time of the examination."

The record discloses by substantial proof, uncontradicted, that the assured's condition was as described in the above question.

From the above quoted question and answer it is observed that Dr. Killebrew's testimony was limited to the urological finding at the time of the examination. The following letter from Dr. Killebrew to the defendant was introduced as evidence:

"Dec. 8, 1936

"Mutual Benefit Health & Accident Asso.,

"Tenth Floor Sterick Building

"Memphis, Tennessee

"Dear Sirs:

"Mr. W. B. Raulston came into my office earlier than the appointed time and was examined by Dr. Gay my associate, and was to return with Dr. Anderson to see me at the appointed time. The examination that was conducted at that time was necessarily of the superficial nature because of the limited time at our disposal. We discovered however, the following positive findings: A tachycardia of 118, a hypertension of 150/90, a slight dilation of the heart, a definite albuminuria, and the presence of numerous pus cells in the uncentrifuged specimen. The right kidney region was tender to palpitation, and to deep percussion.

"Mr. Raulston, we feel, both as a result of the physical findings, and the history in his case, is unable to carry on any gainful occupation at this time. A more thorough and searched examination would doubtless discover the cause of the pus that is now present in the urine. This however, would require more time than was at our disposal during his brief visit. It would require a cystoscopic examination with X-rays to get at the basis of this trouble, and Mr. Raulston did not feel that he had time for this service.

"Very respectfully yours,

"JBK:C Jos. B. Killebrew, M. D."

Dr Killebrew in testifying explained that his letter was based on a cursory examination made by his associate, Dr. Gay, and that the only way he could...