Walters v. Mut. Benefit Health & Accident Ass'n, 39372.

• Decision Date: 02 April 1929
• Docket Number: No. 39372.,39372.
• Citation: 224 N.W. 494,208 Iowa 894
• Parties: WALTERS v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.
• Court: Iowa Supreme Court

208 Iowa 894

224 N.W. 494

WALTERS

v.MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

No. 39372.

Supreme Court of Iowa.

April 2, 1929.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Action at law to recover on a policy of health and accident insurance. A jury was waived. The court found for the plaintiff. The defendant appealed. Reversed.John R. De Witt, of Chicago, Ill., and P. E. Horan and G. J. Cleary, both of Omaha, Neb., and Parrish, Cohen, Guthrie, Watters & Halloran, of Des Moines, for appellant.

D. E. Stuart and H. P. Finerty, both of Council Bluffs, for appellee.

GRIMM, J.

The policy in this case was issued January 19, 1926, and was kept in force until December 31, 1926, and was later reinstated on January 14, 1927. The insured, Charles A. Walters, resided in Council Bluffs, and during the last seven years of his life he was employed at the Griffin Wheel Works, in that city, as a machinist helper and repairman. It is claimed by the plaintiff that some time in the month of December, 1926, Walters sustained injuries through accidental means, which resulted in his death February 7, 1927. It is not claimed that any one saw the accident. A witness Bonham testified that he met Walters on the street some time before Christmas of 1926, when Walters showed Bonham a bump about the size of one-half of a hen's egg, located approximately one inch above and a little back of Walters' ear, and at that time Walters told him “he had been hit down at the factory.” Walters continued to work as usual until January 13, 1927, when he called on a physician in Council Bluffs, when, accordingto the physician, he found Walters suffering a partial paralysis on the right side, and he had a pin point pupil in the left eye. There was no evidence of any traumatism on the head, and the only apparent symptoms of trouble were this condition in his eye and his complaint about the semiparalytic condition of his right side. He went to the hospital almost immediately. The condition of the eye grew worse, and was afterwards removed by an eye specialist. Shortly thereafter Walters complained that the fingers of his right hand became numb, and finally this numbness involved the whole right arm, and afterwards the right leg. His condition grew steadily worse until February 6th, when he died. An autopsy was performed. There is some disagreement among the doctors as to what was found as a result of the autopsy. There is a disagreement among the doctors as to whether there was any fracture of the skull. An abscess was found, about a quarter of an inch from the outer wall of one side of the brain.

[1] I. The plaintiff complains that, because of the form of the answer filed by the defendant, the general denial therein contained will not be considered, and all the material allegations of the petition must be deemed admitted, and that the defendant must stand upon its special defense alone. On the 26th of August, 1927, the defendant filed an answer, in substance, admitting: (a) Its corporate existence; and (b) that it issued the policy in question. There is also a general denial. On the 26th of September, 1927, with leave of court, the defendant filed an amended answer, which contained, in substance: First (a) an admission of its corporate organization; (b) the issuance of the policy. Second, the special defense that the insured died of a brain abscess, and by reason thereof there was no liability; (c) “for further answer, the defendant denied each and every other allegation in plaintiff's petition.”

A motion was made to strike from the amended answer this special defense, on the ground of its immateriality and that it constituted no defense, and for the further ground that the payments provided in part K of the policy constituted a provision for benefits additional to the death benefits provided generally in the policy. The abstract does not show, but we assume the motion to strike was overruled. No motion was made to require the defendant to separate its answer into counts or divisions. Miller v. Johnson (Iowa) 218 N. W. 472, cited by appellee, does not apply. The pleading by appellant, that the death of the insured was due to a brain abscess and that by the terms of part K of the policy no death benefit was recoverable, was not in conflict with appellant's general denial, but, on the contrary, was in strict harmony with it, and therefore does not come within the statute or the rule as to pleading contended for by the appellee.

[2] II. The motion for new trial in this cause contains nine specific grounds. In our view of the case, it is necessary only to discuss that portion of the motion pertaining to recovery under the death benefit portion of the policy.

The contract in controversy in this case, Exhibit 1, contains an insuring clause, as follows:

“Mutual Benefit Health and Accident Association, Omaha (herein called Association) does hereby insure

+---------------------------------+
                ¦Monthly Benefits        ¦$100.00¦¦
                +------------------------+-------+¦
                ¦Maximum Monthly Benefits¦$200.00¦¦
                +--------------------------------+¦
                ¦Death Benefit                   ¦¦
                +--------------------------------+¦
                ¦Maximum Death Benefit           ¦¦
                +---------------------------------+
                

“ Insuring Clause.

“Charles A. Walters (Herein called the Insured) of City of Council Bluffs, State of Iowa, against loss of life, limb, sight, or time, resulting directly and independently of all other causes, from personal bodily injuries sustained through purely Accidental Means (Suicide, sane or insane, is not covered), and against loss of time on account of disease, as specified in the following schedules, respectively, subject, however, to all the provisions and limitations hereinafter contained. (All italics in this opinion are ours.)

“It will be noted that the contract insures Walters against loss of life, limb, sight, or time from accident or disease, “as specified in the following schedules, respectively, subject, however, to all the provisions and limitations hereinafter contained.”

By the italicized langauge attention is definitely called in the insuring clause to the restrictions which follow in the policy. There is nothing ambiguous about this language. It definitely specifies that the insurance against loss of life, limb, sight, or time, resulting from accident or disease is only issued as definitely restricted in subsequent parts of the policy.

Immediately after the foregoing, appears the following:

“ Accidental Indemnities.

Specific Losses.

Part A.

If the Insured shall, through accidental means, sustain bodily injuries as described in the Insuring Clause, which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the Insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay:

+----------------------------+
                ¦For Loss of Life ¦$2,000.00”¦
                +----------------------------+
                

Here follows a schedule as to amounts paid for loss of eyes, hands, feet, etc.

It will be noted from the foregoing that, in accordance with the plain and unambiguous language of the policy, insurance against specific losses arises only when by accident the specific losses “ immediately, continuously and wholly disable the Insured from the date of the accident.”

Part B provides an annual increase of benefits.

Part C provides $100 per month for life for total accident disability.

Part D provides $40 per month for partial accident disability.

Part E provides double indemnity, providing the injury is received under certain conditions, as, for instance, riding as a passenger within the inclosed part of any railway or street railway passenger car.

Part F provides a medical attendance fee.

Part G provides an additional $200 aid under certain specified conditions.

Parts H, I, J, and K are grouped under the general heading “Illness Indemnities.”

Part H reads as follows:

“Part H.

Confining Illness One Hundred Dollars Per Month for Life.

The Association will pay, for one day or more, at the rate of One Hundred ($100.00) Dollars per month for disability resulting from disease, the cause of which originates more than thirty days after the date of this Policy, and which confines the Insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.”

Part I reads as follows:

“Part I.

“Non-confining Illness Fifty Dollars Per Month.

“The Association will pay, for one day or more, at the rate of Fifty ($50.00) Dollars per month, but not exceeding one month, for disability resulting from disease, the cause of which originates more than thirty days after the date of this policy, and which does not confine the Insured continuously within doors but requires regular medical attention; provided said disease necessitates total disability and loss of time.

Part J provides benefits payable while confined to the hospital.

Part K reads as follows:

“Part K.

Covered as Sickness.

All diseases are covered by this policy.

Any accidental injury, fatal or otherwise, resulting in hernia, boils, carbuncles, felons, abscesses, ulcers, infection, septicaemia, ptomaine poisoning, diabetes, fits, peritonitis, apoplexy, sun-stroke, freezing, hydrophobia, sprained or lame back, shall be paid for as provided in Part H or I, anything to the contrary notwithstanding.”

It will be noted that, under the provisions of part K, an accident which results in various conditions and ailments, such as infection, septicaemia, abscesses, sprained or lamed back, “shall be paid for as provided in Part H or I, anything to the contrary notwithstanding.” Reference to part H discloses a provision for benefits for “confining illness,” while part I provides a benefit for “non-confining illness.” It will also be noted that this limitation applies whether the accident proves fatal or...