Wade v. Mut. Ben. Health & Accident Ass'n, 8005.

CourtSupreme Court of West Virginia
Citation177 S.E. 611
Decision Date18 December 1934
Docket NumberNo. 8005.,8005.

177 S.E. 611


No. 8005.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1934.

[177 S.E. 612]
Syllabus by the Court.

1. A policy stipulation that provides a stated indemnity for illness which "confines the Insured continuously within doors, " is not intended to prescribe or limit the conduct of the insured, but to describe the condition, extent and degree of illness.

2. A provision in an insurance policy requiring continuous confinement within doors as a basis for a prescribed rate of indemnity must be reasonably construed and applied, and is not to be deemed violated by the insured's occasional departure from the house, under the advice of a physician, for the purpose of obtaining the benefits of fresh air, sunshine and moderate exercise as a means of promoting the recovery of the insured.

3. An insured is entitled to the protection which he buys and for which he pays.

4. The waiver of a vested right under a contract must rest on valuable consideration.

5. Where an insured is entitled to benefits under a policy of insurance, it is ordinarily not necessary for him to offer to return an amount which has been paid him in attempted compromise, before he may maintain suit for the residue.

6. Proof of loss under a policy of insurance need not be filed where the insurer, within the period in which the proof should be filed, denies liability.

Error to Circuit Court, McDowell County.

Action by Sam Wade against the Mutual Benefit Health & Accident Association. Judgment for plaintiff, and defendant brings error.


Sanders & Crockett and Walter G. Burton, all of Bluefield, for plaintiff in error.

G. W. Howard and Christie & Christie, all of Welch, for defendant in error.


This writ of error presents for review a judgment of the circuit court, on verdict, for $2,18S.19, in favor of Sam Wade, plaintiff, and against Mutual Benefit Health & Accident Association, a corporation, defendant.

The action is on a health-accident insurance policy issued by the defendant to the plaintiff June 20, 1929. Under the head of Illness Indemnities, the policy requires the insurer to pay the insured $200.00 per month for disability resulting from disease "which confines the Insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total loss of time." For nonconfining illness resulting from disease, the policy requires payment of $100.00 per month. The policy also provides for hospitalization expenses not exceeding $150.00 per month. Plaintiff's gross claim was for $2,800.00 composed of these items: twelve months of confining illness at $200.00 per month, $2,400.00: one and one-half months of non-confining illness at $100.00 per month, $150.00; hospitalization, $310.00. The total is credited by plaintiff with two payments made to him by the defendant, one for $481.66 December 3, 1931, the other for $190.15 February 5, 1932. The residue of $2,188.19 is the basis of the verdict and judgment.

Plaintiff became ill from appendicitis September 15, 1931. He underwent an appendectomy two days later. Owing to internal infection, it was necessary for him to submit to three subsequent major operations, on the respective dates of December 15, 1931, March 17, and June 12, 1932. In the latter part of November, 1931, plaintiff filed proof of claim accompanied by written statement of his physician, Dr. J. E. Brown. The company responded by paying $4S1.66 covering the period September 17 to November 14, 1931. In January, 1932, the defendant was notified that the plaintiff was again ill. The plaintiff was visited February 5th by a district manager and an adjuster of the defendant. In the conversation then had, they asserted that the defendant had settled with the plaintiff,

[177 S.E. 613]

but, after some discussion, they agreed to pay him $190.15, which they say was by way of compromise. They exacted of him a release as well as the execution of a rider to be attached to the policy, both of which writings purported to relieve the defendant of all liability on account of the plaintiff's illness. On the same date, before payment was made, the plaintiff submitted a supplemental proof of claim and the physician's additional statement. Plaintiffs next demand of the company was made in the spring of 1933.

During the period for which the plaintiff claims full indemnity (house confinement), October 1, 1931, to October 1, 1932, he was in his home or the hospital substantially all of the time, but admits that on a few occasions he was out of doors. The physician made many trips to the plaintiff's home to dress the wound in his side following the operations, but, sometimes, when the plaintiff felt able to do so, he would go to the physician's office, about 100 yards distant, to receive treatments. A few times he walked to his own place of business which was nearby, and would rest there for a little while before returning home, but took no active part in the conduct of the business. Occasionally, he would take short walks for exercise and air. His being out of doors now and then was not for the purpose of amusement or profit but to aid physical recovery. All was done under the advice of his physician who thought that moderate exercise, sunshine and air would be beneficial.

We consider that the plaintiff was totally disabled during the period for which he claims indemnity. Total disability within the meaning of an insurance provision covering such condition, does not mean absolute helplessness. An insured may recover under such indemnity "where, because of injury or illness, he has become unable to do substantially all the material acts necessary to the conduct or prosecution of his business or occupation in substantially his usual and customary manner." Hayes v. Prudential Insurance Co. (W. Va.) 171 S. E. 824, 825. The plaintiff, being totally disabled by disease, ex necessitate suffered total loss of time, within the meaning of his policy. But what are the plaintiff's rights under the policy in the light of the condition in the policy that he shall not be entitled to indemnity on the basis of $200.00 per month unless his injury confines him "continuously within doors" during the period of such disability? Does the fact of his occasional departure from within doors, as recited, bar him of the right to indemnification on the basis of $200.00 per month? We answer that it does not. A policy provision requiring continuous confinement within doors must be reasonably construed and applied. 14 Ruling Case Law, p. 1318; Stewart v. Casualty Co., 141 Wash. 813, 250 P. 1084, 49 A. L. R. 960, and annotation.

Under circumstances, such as are involved in this case, that is, where an insured person has become totally disabled and has been confined in the house substantially all of the time, and regularly attended by a physician, but...

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