Wisconsin Nat. Life Ins. Co. v. Meixel

• Decision Date: 02 November 1943
• Docket Number: 27901.
• Citation: 51 N.E.2d 78,221 Ind. 650
• Parties: WISCONSIN NAT. LIFE INS. CO. v. MEIXEL.
• Court: Indiana Supreme Court

51 N.E.2d 78

221 Ind. 650

WISCONSIN NAT. LIFE INS. CO. v. MEIXEL.

No. 27901.

Supreme Court of Indiana

November 2, 1943

Appeal from St. Joseph Circuit Court, Dan Pyle Judge.

Arnold Degnan, Dohnalik & Goheen, of South Bend, for appellant.

Loomis & Hartzer, of South Bend, for appellee.

RICHMAN Judge.

Appellant issued a policy of insurance to appellee date June 23, 1939 containing provisions for indemnity on account of sickness and hospitalization. She was ill from February 3, 1940, to November 1, 1940. Her complaint in two paragraphs was filed May 17, 1940. The first paragraph demanded $400 covering three monthly payments of one hundred dollars each on account of sickness and fifty dollars on account of hospitalization. A general denial was the only answer. The provisions of the second paragraph are not important in view of the conclusion we have reached.

The cause was tried May 4, 1941, with special finding of facts and conclusions of law to which appellant excepted. Judgment was entered against appellant for $975.88 which included nine monthly payments of one hundred dollars each as indemnity for sickness, and twenty-five dollars indemnity for hospitalization, with interest on the respective amounts from January 1, 1941, to December 15, 1941, as of which date the judgment was entered. There was no motion for a new trial. The evidence is not before us. The only errors assigned are on the exceptions to the conclusions of law.

Coverage as to illness indemnity is fixed by the two following provisions of the policy:

'The Company will pay at the rate specified in Part I, ($100 per month) for illness indemnity, for a period not exceeding twelve months beginning with the first day after the first visit of a physician, during which the Insured shall be necessarily continuously and entirely confined within the house and totally and continuously disabled and prevented from the performance of any and every duty pertaining to the business or occupation, solely by reason of 'such illness.'

'Neither the accident nor illness insurance under this Policy shall cover disability for any period during which the insured is not under the professional care of and regularly attended at least once in every seven days by a legally licensed physician, other than the insured.' Findings seven and eight were as follows:

'That plaintiff insured was under the terms of the policy in question continuously permanently and totally disabled and was thereby unable to follow any duties pertaining to her business or occupation from the 3rd day of February, 1940, up to and including the 1st day of November, 1940, and was continuously and wholly confined to the house, except for an occasional visit to her doctor's office.'

'That during the period from February 3rd, 1940, until the 1st day of November, 1940, plaintiff was under the continuous care and attention of a duly licensed and practicing physician of the city of South Bend, Indiana, and was in continuous consultation with said physician by personal calls by the physician to plaintiff's home or hospital to July 1, 1940, and from July 1, 1940 to November 1, 1940 by continuous visits either by said physician to plaintiff's home or by plaintiff to physician's office or by occasional telephone consultations.'

The facts so found are sufficient to establish liability under the provisions above set forth and to justify the court's conclusion that appellee was entitled to indemnity payments for nine months ending November 1, 1940.

But appellant says that since the complaint seeks only to recover the first three months' indemnity, these findings and conclusion, to the extent that they permit recovery...