United Sec. Life Ins. Co. v. Kelley, 2 Div. 20

• Court: Alabama Court of Appeals
• Writing for the Court: CATES; Bouldin
• Citation: 40 Ala.App. 484,119 So.2d 190
• Parties: UNITED SECURITY LIFE INSURANCE COMPANY v. John B. KELLEY.
• Docket Number: 2 Div. 20
• Decision Date: 13 October 1959

Page 190

119 So.2d 190 40 Ala.App. 484 UNITED SECURITY LIFE INSURANCE COMPANY
v.
John B. KELLEY. 2 Div. 20. Court of Appeals of Alabama. Oct. 13, 1959.
Rehearing Denied Nov. 10, 1959.

Page 191

[40 Ala.App. 486] S. P. Keith, Jr., Birmingham, for appellant.

Brobston, Jones & Brobston and W. E. Brobston, Bessemer, for appellee.

CATES, Judge.

United Security appeals from a nonjury judgment in the amount of $756 upon an

Page 192

accident insurance policy. The accident happened October 1, 1957, when Mr. Kelley was hurt in a coal mine while trying to head off a runaway trip of mine cars.

Aside from the propriety of certain questions and answers accepted by the court, this appeal mainly hinges on whether or not a man insured under an accident indemnity policy who loses a leg is due total disability benefits where the policy calls for another specific but lesser benefit for the loss of a limb.

No certificate of service of the assignments of error on appellee is in the record. But Kelley, by not moving to dismiss, has waived this omission. Edge v. Bice, 263 Ala. 273, 82 So.2d 252.

The insuring clause provides indemnity 'against loss of limb, sight or time.' ¹ The two pertinent benefit schedules are: (1) Section A calls for $45 a month (up to $270) where, within thirty days, the injury causes the loss of one leg; (2) Section B provides $90 a month (up to $1,080 in all) for continuous total disability.

Kelley's brief controverts United Security's statement of the facts, e. g., United Security's brief says Dr. Herrod, a surgeon, treated Mr. Kelley during forty days, but it leaves out the details of the treatment.

The main medical facts from the record follow:

'A. Mr. Kelley was in shock; and was given blood--the amount I don't remember, one or two bottles; and the blood pressure was stabilized; and he was taken to surgery; and because of the severity of the injury and loss of blood supply to his foot, the foot was beginning to turn dark and cold.

[40 Ala.App. 488] 'Q. Would that indicate gangrene? A. No, not that early. It was too early for that. But it indicated no blood getting down there. We decided to amputate; and amputated his leg some five or six inches below the knee. Then he was put in bed in a pelvic sling. A pelvic sling is just what it states, a sling the patient sits in, with traction going up to a pulley, going down to the foot of the bed, with weights, just enough to keep the patient's body just off the bed or just touching the bed. The purpose is to

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exert pressure on either side of the pelvis, trying to push the bones together that are separated.

'Q. How long did Mr. Kelley remain in traction in a pelvic sling? A. Approximately six weeks.

'Q. How long after that did he remain in the hospital? A. He was in the hospital about forty days.

'Q. Now, did--was there complete, were the bones put back exactly in place and knitted in place? A. No.'

Dr. Herrod stated that Mr. Kelley's disability prevented him from performing 'any serious physical labor,' for a year from the time of the accident.

We quote from appellee's brief:

'The appellee * * * is forty-six years of age and went only to the seventh grade in school and has been a miner for thirty years and has done no work other than in underground mines and never worked in any trade or profession, had no training other than the seventh grade education and never operated a business and had no funds to operate a business, that he had no investments and no income or means of income other than manual labor. * * *'

National Life & Accident Ins. Co. v. Davies, 34 Ala.App. 290, 39 So.2d 697, involved facts some of which differ from those here:

Davies Kelley

---------------- ---------------

1. Accident Rock fall Run over by

mine car

2. Specific loss clause "Both feet" "Limb"

3. Specific loss Legs (amputation Leg (amputation

needed) needed)

4. Total disability From legs From leg

alone and broken

pelvis

The Davies case follows the reasoning of Kangas v. Standard Acc. Ins. Co., 138 Minn. 418, 165 N.W. 268, L.R.A.1918B, 504, i. e., both courts put a strict construction on the specific loss clause, in that the loss of a limb (i. e., in Davies the leg, in Kangas the arm) does not include--for the purposes of the policy--the lesser included dependent member, i. e., in Davies the foot, in Kangas the hand.

The loss of Kelley's leg between the ankle and the knee is the loss of a 'limb' under his policy. If this were the only result of the injury, there might be doubt as to the disability clause operating.

Since there was evidence that the combination, loss of leg and pelvic fractures, resulted in total disability for a year, the trial judge could make a valid finding for Kelley, certainly to the time of filing. See Kinard v. Mutual Benefit Health & Acc. Ass'n, D.C., 108 F.Supp. 780, and cases therein cited, particularly Rabb v. North American Acc. Ins. Co., 28 Idaho 321, 154 P. 493.

In the Kinard case, supra, we find (108 F.Supp. at page 788):

'The provision in the policy that recovery for the loss of an eye (or other specific losses) 'shall be in lieu of all other indemnity,' means that the indemnity thus provided is the only amount which can be recovered for disability resulting from the loss of one eye. This provision is not a limitation of recovery for other wholly and continuously[40 Ala.App. 489] disabling injuries to other parts of the body, although received in the accident.'

Kelley's policy had no proviso to exclude from the total disability clause injuries which also resulted in the loss of a limb. ² Hence, loss of the leg and total disability were not mutually exclusive

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where pelvic fracture was a substantial factor of the disability.

Assignments 4, 5, 6, 7, 8, 9 and 10 are argued seriatim in brief with a single argument, to which reference is made, under the heading designated by each numbered assignment, e. g.:

'Assignment of Error No. 5

'Appellant here adopts in support of this assignment of error all that has been set forth under the argument of Assignment of Error No. 4.'

At least one common thread runs through these claimed errors. Hence, we can review within the scope of the common point. Christian v. Fidelity & Cas. Co. of N. Y., 264 Ala. 616, 88 So.2d 840. Cf. Stiles v. Lambert, 39 Ala.App. 15, 94 So.2d 784, where unlike assignments could not be argued by reference.

The common argument relates to the rule in Equitable Life Assurance Soc. of United States v. Davis, 231 Ala. 261, 164 So. 86, and in Volunteer State Life Ins. Co. v. Davis, 31 Ala.App. 167, 14 So.2d 162, which does not permit medical testimony on a matter of common knowledge because it impinges on the function of the jury to decide the ultimate issue. See Alabama Great So. R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.

Equitable Life Assurance Soc. of United States v. Davis, supra [231 Ala. 261, 164 So. 87], involved a total and permanent disability clause in a group life policy. The offending question asked the physician was:

'* * * will you tell * * * whether or not, medically speaking, that man's condition is such that he can do manual labor?'

Bouldin, J., speaking for the court, said:

'* * * So, when the sole permanent disability according to his [the physician-expert's] testimony, consists in the loss of the use of one arm, any opinion on his part that such injury works a total disability to do profitable manual labor by one accustomed to such labor should not be received, although the witness claims to speak with professional knowledge.'

Volunteer State Life Ins. Co. v. Davis, supra [31 Ala.App. 167, 14 So.2d 166], held it was not error to sustain an objection to a question as to whether the medical witness himself was capable of deciding whether Davis was totally and permanently disabled 'within the terms' of the policy. This was asking the witness as to his own expertness, which vice we should suppose sufficient to support the ruling. Bricken, P. J., preferred, however, to rest his reasoning on the usurpation concept.

The contrast...