Stewart v. Continental Cas. Co.

• Decision Date: 06 December 1926
• Docket Number: 20134.
• Citation: 250 P. 1084,141 Wash. 213
• Parties: STEWART v. CONTINENTAL CASUALTY CO.
• Court: Washington Supreme Court

250 P. 1084

141 Wash. 213

STEWART v. CONTINENTAL CASUALTY CO.

No. 20134.

Supreme Court of Washington

December 6, 1926

Department 2.

Appeal from Superior Court, King County; Paul, Judge.

Action by Alice M. Stewart against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Poe Falknor, Falknor & Emory, of Seattle, for appellant.

G. F Vanderveer and M. H. Cooperman, both of Seattle, for respondent.

PARKER J.

The plaintiff, Miss Stewart, commenced this action in the superior court for King county seeking recovery from the defendant casualty company upon certain health insurance provisions of a policy issued to her by that company. A trial upon the merits in the superior court, sitting without a jury, resulted in findings and judgment awarding recovery to Miss Stewart in the sum of $1,866.67, as a balance due under the policy for her loss of time from her occupation during which she was totally disabled by sickness and continuously confined within the house under the regular care of a legally qualified physician. The award of the court is for loss of 19 months' and 20 days' time at $100 per month, less $100 which had been paid her by the company. From this disposition of the case by the superior court the company has appealed to this court.

The policy, among other things, insures 'against loss of time from bodily sickness or disease.' The provisions of the policy with which we are here concerned are the following:

'Part VIII. Health Insurance.--In the event that the insured shall suffer from any bodily sickness or disease which is contracted and begins while this policy is in force as regards health insurance, the company will pay for the loss of time resulting therefrom as follows:

'A. Said monthly indemnity will be paid for such period as the insured by reason of such sickness shall be totally and continuously disabled from performing each and every duty pertaining to his occupation, and shall also by reason of such disability be strictly and continuously confined within the house and therein be under the regular care of a legally qualified physician.

'B. Said monthly indemnity will also be paid for such period, not exceeding two months, as the insured by reason of a nonconfining sickness or by reason of convalescence from a confining sickness shall be totally and continuously disabled from performing each and every duty pertaining to his occupation and shall also be under the regular care of a legally qualified physician, though not confined within the house.'

The monthly indemnity referred to in these paragraphs is $100.

The controlling facts, as we view them, may be fairly summarized as follows: The policy was issued on April 2, 1923; the first and second annual premiums were paid to the company. Plainly therefore, the policy was in force up to April 2, 1925, and for such further time as Miss Stewart may have been entitled to monthly indemnity under the above-quoted provisions, for her sickness beginning while the policy was in force. In June, 1924, Miss Stewart became afflicted with acute glaucoma of the left eye, and later in February, 1925, became afflicted with acute glaucoma of the right eye. On August 9, 1924, she had become, and thereafter was continuously, disabled by reason of such sickness from performing any duty pertaining to her occupation as a nurse, or any other occupation, up until March 29, 1926; that is, she was so disabled for a period of 19 months and 20 days. She was, during the whole of that period and for some three weeks prior thereto, under the regular and continuous care of a legally qualified physician. She went to a hospital on August 9, 1924, where there was then performed a very serious operation upon her eye by her physician, who continued to visit and attend her there daily up until August 17, 1924. She then returned to her home, where she was compelled to remain continually because of the continued affliction to her eyes, until March 29, 1926, except that she went occasionally to her physician's office for examination and treatment some four blocks distant from her home, always on such occasions being necessarily accompanied by another person, also to a hospital for treatment where she necessarily remained some 12 days in November, 1925, and also occasionally she took very short walks outdoors by advice of her physician, always when out of doors necessarily accompanied by another person. Her eyes were examined and treated by her physician approximately weekly during the period in question, apparently, aside from the first month or two, for the most part at her physician's office, though occasionally at her home. The evidence as a whole, we think, renders it quite clear that she was practically helpless during this whole period in so far as being able to go alone from her home was concerned, and that her every excursion from her home was for the sole purpose of receiving treatment by her physician, other than the occasional short walks taken by her for exercise in the open air by advice of her physician.

The real controversy here is as to whether or not Miss Stewart can be considered as being, by reason of her disability, 'strictly and continuously confined within the house and therein be under the regular care of a legally qualified physician,' within the meaning of paragraph A of the policy above quoted. The decisions of the courts touching problems of this nature are seemingly not harmonious. It seems to us, however, that such conflict is rather more apparent than real, when each decision is particularly noticed in the light of the circumstances of the particular case dealt with. Indeed, there seems to be no two cases exactly alike. The words, 'confined within the house,' or 'confined to the house,' have seldom been taken by the courts in their literal meaning. Among the decisions of the courts coming to our attention which seem to us to lend support to the contentions here made in behalf of Miss Stewart and in support of the judgment of the trial court, we notice the following:

In Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S.W. 750, there was drawn in question a sick indemnity insurance clause reading as follows:

'If any sickness, contracted and beginning after this policy has been in continuous force for 30 days from this date, shall totally disable and prevent the insured from performing any and every duty pertaining to any and every kind of business or occupation, and shall necessarily and continuously confine him within the house, where he shall be regularly visited by a licensed physician, the company will pay for the period of such confinement, not exceeding six months, benefit at the rate per month of $100.'

This was followed by a nonconfinement indemnity clause in substance the same as the one here in question. The court's view of the applicable law is expressed as follows:

'The testimony discloses the course of treatment to which plaintiff was subjected while in the sanatorium at Denver. He was continuously under the treatment of physicians, and was confined to the house, except that he was out for a short time daily, under the direction of the physician, for the purpose of getting sunshine and fresh air.

'The court instructed the jury that 'a continuous confinement within the meaning of this instruction does not mean that the plaintiff, in order to be entitled to this benefit, must have actually been confined within the walls of a house every minute or hour,' but that 'the mere fact that he went out occasionally and at stated intervals for the purpose of taking exercise and fresh air, under the instructions of his physician, would not be sufficient to prevent plaintiff from recovering in this action.' This instruction was given over the objection of the defendants and the ruling is assigned as error. That is the principal ground urged here for reversal.

'We are of the opinion that the court corlectly interpreted the contract, and that the instruction complained of was not in conflict with the law which controls. Cases cited on the brief fully sustain that view: Jennings v. Brotherhood, 44 Colo. 68, 96 P. 982, 18 L. R. A. (N. S.) 109, 130 Am. St. Rep. 109; Breil v. Claus, 84 Neb. 155, 120 N.W. 905, 23 L. R. A. (N. S.) 359, 18 Ann. Cas.

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