Trompeter v. United Ins. Co.

• Decision Date: 17 October 1957
• Docket Number: No. 34052,34052
• Citation: 316 P.2d 455,51 Wn.2d 133
• Court: Washington Supreme Court
• Parties: Louis W. TROMPETER, Respondent, v. UNITED INSURANCE COMPANY, a corporation, Appellant.

Page 133

51 Wn.2d 133

316 P.2d 455

Louis W. TROMPETER, Respondent, v.UNITED INSURANCE COMPANY, a corporation, Appellant.

No. 34052.

Supreme Court of Washington, Department 1.

Oct. 17, 1957.

Rehearing Denied Nov. 26, 1957.

Murray & Hanna, by Robert F. Murray, Wenatchee, for appellant.

Kimball & Clark, Waterville, for respondent.

FOSTER, Justice.

United Insurance Company appeals from a twenty-thousand three hundred ten dollar judgment on a policy of accident insurance insuring respondent against total disability.¹

The complaint alleged permanent total disability from the date of the accident.The prayer was for the accumulated monthly indemnity of one hundred dollars per month plus all future installments thereof.

Appellant's answer denied permanent total disability and pleaded a written release and payment as a complete accord and satisfaction which respondent alleged lacked consideration and that appellant refused to pay otherwise.

Upon trial appellant contended that if the jury found respondent permanently totally disabled as a result of the accident, recovery should be limited to the accumulated monthly installments.The verdict, however, was for the full present value of all future installments.Under the instructions, the finding of permanent total disability inheres in the verdict of twenty thousand three hundred ten dollars, for which amount judgment was entered.

On October 23, 1953, at the Chief Joseph Dam, a concrete form constructed of heavy timber, estimated to weigh from two to four tons, fell, knocking respondent from a fifteen-foot ladder on which he was working, pinning him underneath and crushing the ladder.The effforts of a number of men with heavy pries were required to lift the form sufficiently to extricate the respondent.

Respondent sustained multiple injuries, the most prominent of which were seven broken ribs, bleeding and scarring of the lungs, a chip fracture of the right elbow, an ulnar nerve injury in the right arm with resulting weakness of the hand, a compression fracture of the third lumbar vertebra, sprained ligaments in the right knee and resulting traumatic neurosis.

Continuously from the injury to the trial, respondent suffered from shortness of breath and pain upon breathing.After twice unsuccessfully attempting to resume the same employment, respondent was sent by his attending physician to a chest specialist in Spokane, who, because of the injury, removed the lower portion of respondent's left lung.

The attending physician testified that respondent had been totally and continuously unable to work since the accident, that his condition was permanent, and that no further improvement could be expected, but his condition would become progressively worse.

At the urging of his first attending physician, respondent returned to work December 7, 1953, but quit after a week because he was unable to do anything.Discouraged by his failure to recover, respondent procured a transfer to another physician by the industrial insurance division of the state department of labor and industries.

The second physician testified that he thought light work would speed recovery and particularly would be beneficial in treatment of the traumatic neurosis.He arranged with respondent's employer for light work, but even this was too much.His foreman constantly complained to the physician that respondent was unable to do anything.The doctor testified that respondent was unable to work during the interval from May 3, 1954 to July 30, 1954, and that it was a mistake to suggest it.

Further detail of respondent's disability is unnecessary to demonstrate that the evidence was amply sufficient to sustain a recovery for permanent total disability.

But the appellant urges upon us the argument that respondent's total disability was not continuous from the time of the accident on October 23, 1953, because he worked from December 7, 1953 to December 14, 1953, and from May 3, 1954 to July 30, 1954.This is a non sequitur.It is not correct to say that he worked during those two brief intervals although he did receive pay.The proofs show that respondent did not work, and that he was physically unable to do so, and he should not be prejudiced for following his physician's directions in good faith.

Recently (November, 1956), the supreme court of Oregon had occasion to consider this precise question in an appeal by the same insurance company, La Barge v. United Ins. Co., Ore., 303 P.2d 498, 502, and approved the following paragraph from the decision of the supreme court of South Carolina in Mann v. Travelers' Ins. Co., 176 S.C. 198, 179 S.E. 796, 799:

"The appellant strenuously contends that the fact that plaintiff undertook to return to work and was able to perform a part of his duties and to draw his full salary for a time would preclude his recovery.The conduct of the plaintiff is highly commendable, as he showed that he was doing all he could to minimize the liability of the defendant.If the fact that the insured undertook to do his regular work, even when his final recovery was doubtful, would preclude recovery, it would encourage less scrupulous people to refuse to work so long as they could draw disability compensation."

The test is not whether the insured attempted to work and received full pay for a short period, but whether during that time he was, in fact, totally disabled.Other cases following the same rule are collected in the margin.²The proofs are overwhelming that during those two brief periods the respondent was totally disabled.

On November 16, 1953, appellant acknowledged receipt of its executed claim form from respondent covering the injury in question.A protracted correspondence ensued in which appellant claimed that respondent's disability was temporary.On March 10, 1954, nearly five months after the injury, appellant, by letter, offered $183.32 for a complete settlement of its liability which respondent refused.

The policy provides:

'Upon request of the Insured and subject to due proof of loss all of the accrued indemnity for loss of time on account of disability will be paid at the expiration of each thirty days during the continuance of the period for which the Company is liable, and any balance remaining unpaid at the termination of such period will be paid immediately upon receipt of due proof.'

While it still had not paid anything under the policy on July 8, 1954, appellant sent respondent a letter ³ itemizing the amounts then due which, in addition to the six monthly installments of $100.00, included $66.66 for hospitalization under other policy provisions, a total of $666.66, which it offered to pay if respondent would execute its printed form of enclosed release styled 'Proposition for Settlement.'⁴This respondent signed and returned on July 19, 1954.Since then appellant has steadfastly maintained there was a complete accord, and, by payment of the amount of $666.66, a complete satisfaction.Respondent has always stoutly contended to the contrary.

Appellant makes no claim that it paid anything more than was then due respondent, and its counsel, with commendable candor, in the brief states 'It is true that the payment of a liquidated, undisputed, matured obligation does not furnish consideration for the release of any additional obligation.'

The sums paid were then due under the plain policy terms and were liquidated.There was no consideration for any release of appellant's liability to respondent for his permanent total disability.Meyer v. Strom, 37 Wash.2d 818, 226 P.2d 218;Graham v. New York Life Ins. Co., 182 Wash. 612, 47 P.2d 1029;Scott v. Missouri Ins. Co., 361 Mo. 51, 233 S.W.2d 660;Continental Cas. Co. v. Johnson, 6 Cir., 103 F.2d 199;Kellogg v. Iowa State Traveling Men's Ass'n, 239 Iowa 196, 29 N.W.2d 559;United States Cas. Co. v. Vinson, 83 Ind.App. 474, 149 N.E. 90;De Soto Life Ins. Co. v. Jeffett, 210 Ark. 371, 196 S.W.2d 243.

There is an additional and compelling reason why this printed form and the payment of the amounts due were not an accord and satisfaction.Respondent had not then made claim for permanent total disability.To create an accord and satisfaction there must be a meeting of the minds, that is, there must be a claim by one party upon the other, and an agreement to settle that claim.A claim not made on July 19, 1954, could not, therefore, be the subject of accord and satisfaction.Puget Sound Pulp & Timber Co. v. O'Reilly, 9 Cir., 1956, 239 F.2d 607;Meyer v. Strom, supra.

Under the uniform business records as evidence act (RCW 5.45.020), appellant offered in evidence a discharge slip made by respondent's employer as evidence of lack of disability.We recently held in Young v. Liddington, Wash., 309 P.2d 761, that statute did not authorize the admission of records for such purpose.

Appellant's principal assignment of error must be sustained.Respondent's right of recovery herein is limited to the monthly installments of indemnity accrued at the time of trial, while the judgment includes not only the installments then due, but, in addition, the present cash value of all future installments for appellant's life expectancy.Respondent, on the other hand, contends that because the appellant refused to pay the recurring installments of monthly indemnity, it completely repudiated its contract, and that the judgment is, therefore, justified under the theory of anticipatory repudiation of contract.

Appellant, however, did not completely repudiate its obligation, but, on the other hand, recognized that the contract was still in force, and defended respondent's claim on the ground that it had paid all amounts due, and that he released it from all liability.

The rule allowing recovery of all future damage before the time for performance has arrived is said to have originated in Hochster v. De la Tour, 2 El. & Bl., Q. B. 678, 22 L.J., Q.B. 455, 17 Jur. 972, 1 W.R. 469, 118 Eng.R. 922, which allowed a...