Standard Acc. Ins. Co. v. Bittle

• Decision Date: 13 December 1929
• Docket Number: No. 5629.,5629.
• Parties: STANDARD ACC. INS. CO. OF DETROIT, MICH., v. BITTLE.
• Court: U.S. Court of Appeals — Fifth Circuit

41 ALR 1376, 36 F.2d 152 (1929)

STANDARD ACC. INS. CO. OF DETROIT, MICH., v. BITTLE.

No. 5629.

Circuit Court of Appeals, Fifth Circuit.

November 22, 1929.

Rehearing Denied December 13, 1929.

J. Q. Mahaffey, of Texarkana, Tex. (M. U. Hayden, of Detroit, Mich., and Jno. J. King, J. I. Wheeler, and C. E. Bryson, all of Texarkana, Tex., on the brief), for appellant.

Hugh Carney, of Atlanta, Tex., and Elmer L. Lincoln, of Texarkana, Tex., for appellee.

Before BRYAN and FOSTER, Circuit Judges, and DAWKINS, District Judge.

BRYAN, Circuit Judge.

This was a suit on a policy of combined health and accident insurance. The policy provided for the payment of $200 per month for 12 months because of total disability resulting from sickness, and $200 per month for 48 months for total disability resulting independently of all other causes from accident. The maximum indemnity under both features was $200 per month. The insured sued and recovered judgment for the full indemnity less a payment of $600, provided for total disability from accident. The judgment included 12 per cent. of the principal amount as a penalty, as well as an attorney's fee, as authorized by article 4736, Revised Civil Statutes of Texas, for the failure of an insurance company to pay the amount due under an insurance policy within 30 days after demand. The insurance company defended on the grounds that disability of the insured was partial and not total, and was attributable to sickness rather than accident, and that the insured released it from all liability upon the payment by it of $600 for an alleged liability extending over three months. The assessment of the statutory penalty and an attorney's fee was resisted on the ground that the insured had neither pleaded nor proved a demand for payment which complied with the article of the Texas Revised Statutes above cited.

At the close of the evidence the trial court denied appellant's motion for a directed verdict, held that the release was without consideration and withdrew it from the jury as an issue in the case, and directed the jury to assess the statutory penalty and a reasonable attorney's fee in the event they found for the insured on the main issue of whether there was a total continuing disability resulting solely from accident. These rulings appellant duly excepted to and assigns as error.

Appellee was a dentist, and while at work in his office fell, striking his arm against a radiator and breaking or dislocating it at the shoulder, striking his head against the window casing and his side or back against the footrest of his dental chair. He was taken to the hospital and thereafter to his home, where he was confined for three months under the care of physicians. During this time he was totally incapacitated for work, but made a few visits to his office. Appellee, according to evidence submitted in his behalf, continued throughout the period of four years covered by the policy to suffer total disability in the sense that he was unable both physically and mentally to engage in his occupation in his customary or usual manner, although for a while he paid visits to his office and attempted to work, but, finding himself unable to do any work of a substantial nature, practically abandoned his occupation. Before the accident, his mental and physical condition was sound. On the other hand, appellant introduced several physicians who gave it as their opinion that whatever disability existed resulted in part at least from sickness, and was not caused solely by the accident.

Upon the expiration of three months from the date of the accident appellant's agent drew a sight draft upon it for $600 payable to the order of appellee, and appellee indorsed the draft and collected that...