Reeves v. Midland Cas. Co.

• Court: United States State Supreme Court of Wisconsin
• Citation: 170 Wis. 370,174 N.W. 475
• Parties: REEVES v. MIDLAND CASUALTY CO.
• Decision Date: 04 November 1919

170 Wis. 370
174 N.W. 475

REEVES
v.
MIDLAND CASUALTY CO.^a1

Supreme Court of Wisconsin.

Nov. 4, 1919.

Appeal from Municipal Court, Langlade County; T. W. Hogan, Judge.

Action by Ben. F. Reeves against the Midland Casualty Company. From judgment for plaintiff, defendant appeals. Modified and affirmed.

This action was brought to recover indemnity upon a health and accident policy issued by the defendant to the plaintiff. The policy was issued August 25, 1916. By the terms of the policy the defendant agreed to pay to the plaintiff full indemnity ($30 per month) “for the period during which the insured shall be necessarily and continuously confined within the house and therein regularly and personally visited by a legally qualified physician, and wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or occupation solely by reason of such illness.” It also agreed to pay partial indemnity (one-half of the fully indemnity) “for the period not exceeding two consecutive months immediately following said confinement, or by reason of nonconfining illness, during which the insured shall be regularly and personally attended by such physician, and wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or occupation.”

Plaintiff was a farm laborer and resided in Langlade county, Wis. He was taken sick July 24, 1917, and for a time was confined within the house, and was therein regularly and personally visited and attended by Dr. Westphal of Polar, Wis. About the middle of August the plaintiff was able to sit out on his porch a great deal, and frequently drove to the doctor's office, a distance of four miles, to be treated.

The case was tried before a jury, and a special verdict was returned, in which it was found: (a) That plaintiff was wholly and continuously disabled and prevented from performing any and every duty pertaining to his business and occupation for a period of at least six months; (b) that plaintiff was necessarily and continuously confined within his house 26 weeks and 3 days; (c) he was by reason of his illness under the professional care and attendance of a legally qualified physician 26 weeks and 3 days; (d) that his physician continuously visited him at his home for a period of 3 weeks between July 22, 1917, and January 22, 1918; (e) that plaintiff, during the first 6 months of his illness, and by reason thereof, visited his physician at the latter's office, at Polar, for a period of 23 weeks and 3 days; (f) that the plaintiff, within 10 days after he was taken sick, authorized and directed his attending physician to notify the defendant company of his illness; (g) that the physician did so; and (h) that the notice given contained particulars sufficient to identify the plaintiff. Upon this verdict judgment was entered for full indemnity for the entire 6-month period, to which liability was limited by the terms of the policy, from which judgment the defendant appealed.

[174 N.W. 476]

Orlaf Anderson, of Milwaukee, for appellant.

Geo. J. Bowler and Whiting & Dempsey, all of Antigo, for respondent.

OWEN, J. (after stating the facts as above).

Appellant contends that the court erred in rendering judgment for full indemnity for the entire period of 6 months, because it appears from the verdict that the plaintiff was not confined within the house and therein regularly and personally visited by a legally qualified physician during the 6-month period. While the jury found that he was necessarily and continuously confined within his house for a period of 26 weeks and 3 days, it also found that he visited his physician at the latter's office at Polar, Wis., for 23 weeks and 3 days, and that plaintiff's physician visited him in his house for a period of only 3 weeks. There is therefore a direct finding that the period during which the plaintiff was treated by a physician in the house existed for only 3 weeks, and it is contended that from the further finding that plaintiff visited his physician's office at Polar, Wis., for a period of 23 weeks and 3 days it necessarily follows that during such time he was not necessarily and continuously confined within the house during such period. The trial court gave this provision of the policy a liberal construction, his view as to its proper meaning being revealed in his instruction to the jury, wherein he said:

“I instruct you that the phrase ‘necessarily and continuously confined within the house’ means such time as plaintiff was confined within the house, and for such time as plaintiff was disabled by reason of his sickness from departing from his house for the purpose of attending to the ordinary affairs of life and to resume the ordinary pleasures thereof, including the times he may be assisted to the porch of his house to...