Зображення сторінки

Sykes, J., delivered the opinion of tism, tuberculosis, paralysis, sciatthe court:

ica, neuritis, Bright's disease, lumThe appellee filed suit in the cir- bago, cancer, hemorrhoid, dementia, cuit court of Lauderdale county or insanity, the company's liability against the appellant accident insur- shall be limited under this paraance company, based upon a health graph to a period not exceeding one and accident insurance policy is- month during any one policy year." sued by the appellant, insuring her On the trial of this cause the lowdeceased husband, Charles J. Nird- er court gave the following instruclinger, and agreeing in said policy tion for the plaintiff: "The court to pay him certain amounts a charges the jury for the plaintiff month while sick or disabled. While that if you believe from a preponthis policy was in force the insured derance of the testimony that became ill and died before the in- Charles J. Nirdlinger was wholly stitution of this suit. The declara- and continuously prevented from attion alleges that the deceased be- tending to his usual and regular came ill on the 14th day of May, duties about his regular business by 1914, and was totally disabled from reason of his illness, then your verattending to any business up to and dict must be for the plaintiff, and in including the date of his death, such sum as will cover such disabilwhich occurred on August 5, 1914. ity at $100 per month for the time The appellee sued for $100 a month so disabled, in all not to exceed the for a period of three months under sum sued for." clause E of the said insurance pol- The giving of this instruction is icy, which clause reads as follows: one of the assignments of error. “At the rate of one hundred and This instruction is predicated upon 00100 dollars per month for the the theory that if the insured was number of consecutive days, after wholly and continuously prevented the first week, that the insured is from attending to his regular businecessarily and continuously con- ness by reason of his illness, then a fined within the house, and therein recovery for the full amount could regularly visited at least once a be had. There are two kinds of acweek by a regularly qualified physi- cident or health insurance policies. cian by reason of illness that is One kind, commonly called an occucontracted and begins after this pation policy, provides for the paypolicy shall have been maintained in ment of certain premiums during continuous force for sixty days; or, the time that the insured is totally if during convalescence immediate- or partially disabled from performly following said confinement, or if ing any or all of his duties pertainby reason of any nonconfining ill- ing to his occupation or business. ness, the insured shall be wholly and The other kind of policy is a genercontinuously disabled from per- al accident and health policy which forming any act or duty pertaining does not make the payment of these to any business or occupation, premiums depend solely upon the though not confined within the

within the total or partial disability of insured house, and shall require the regular from pursuing his occupation or attendance of a physician, the com- calling, but rather makes the paypany will pay an indemnity at one ment of premiums dependent upon half the above rate for a period not the insured's being confined either exceeding two (2) consecutive in bed, to his house or home, or months: Provided, that the com

within the house. The policy in bined period for which indemnity question is of the latter character. shall be paid under this paragraph It makes the payment at the rate of for any one illness shall not exceed $100 a month dependent upon the six (6) consecutive months: Pro- insured's being "necessarily and vided, further, should disability be continuously confined within the caused or contributed to by rheuma- house, and therein regularly visited (113 Viss. 74, 73 8o. 875.) at least once a week by a qualified and, while paragraph (e), taken physician by reason of illness that alone, seems to make his confineis contracted and begins after this ment to his room continuously a policy shall have been maintained," condition precedent to his right of etc.

recovery, yet, read in connection This clause also provides that "if, with paragraph (k), it seems clear by reason of any nonconfining ill- to us that the real test of his right ness, the insured shall be wholly of recovery depends upon whether and continuously disabled from per- he was disabled, during the time forming any act or duty pertaining limit, to perform the duties required to any business

or occupation, of him by his employment. It though not confined within the therefore follows that the trial court house, and shall require the regular was right in directing the jury to attendance of a physician, the com- find for $40 under this policy." pany will pay an indemnity at one In the King Case the appellee was half the above rate for a period not confined to his bed for a week, and exceeding two (2) consecutive then called in a doctor. The doctor months.”

advised him to get up as much as The testimony in the case shows possible and take exercise. Acting that the deceased was ill for the on this advice of his physician, the three months, but that during this plaintiff did at intervals get out of time he went from his home to his bed and attempt to take exercise, store in Meridian almost if not which caused pain and inconvenevery day; that he had a cot in the ience. The evidence also showed back of the store and would lie down that the plaintiff in that case somea great part of the time; that he times went out of the room into the sometimes waited on customers and yard. In the King Case it will be helped his wife with the manage- noted, however, that the reason why ment of the store. He also made a King left his bed was because of his trip to Stafford Springs and another doctor's instructions. In the other to Cooper's Wells during his illness. policy in that case, paragraph 3 The testimony does not show wheth- provided that weekly benefits for er he was confined to his room or sickness will only be paid when the bed at either of these health resorts. assured has been confined strictly Neither does the testimony show to his or her bed for seven consecuwhether or not during any of the tive days. Justice Cook, as to this time he was in Meridian he was paragraph, says: “The evidence confined to his house and unable to shows that he was confined to his go to the store. It is the conten- bed for seven consecutive days, and tion of the appellee in this case that we find no provision in this policy she can recover under the authority which excludes the first week of of National Life & Acci. Ins. Co. v. sickness from the benefits of the inKing, 102 Miss. 470, 59 So. 807. In

demnity.” the King Case there were two poli- Clause E in the policy in suit procies upon which suit was brought, vides that the total premiums of one a special occupation policy, the $100 a month are only due when the other a policy of insurance cover- insured has been "necessarily and ing life insurance combined with a continuously confined within the weekly indemnity for sickness and house," etc. It in no way makes the accident,—the latter policy being recovery of this amount dependent quite similar to the one in this case. in any manner upon the disability In passing upon the special occupa- of the insured to follow his usual tion policy, Justice Cook had the avocation. In this case the insured following to say: "The purpose of was not necessarily and continuousthis policy was to indemnify appel- ly confined within the house. He lee against loss of time in the occu- was not going to his place of busipation which he was following, ness under the advice of any physician. This being true, a right of W. 265; Bishop v. United States recovery in this case would come Casualty Co. 99 App. Div. 530, 91 under

the nonconfining illness N. Y. Supp. 176; Liston v. New clause above quoted, at least for the York Casualty Co. 28 Misc. 240, 58 time that the plaintiff went to the N. Y. Supp. 1090; Schneps v. Fidelstore. The nonconfining clause ity & C. Co. 101 N. Y. Supp. 106; somewhat resembles the occupation Dunning v. Massachusetts Mut. policy, in that it allows this recov- Acci. Asso. 99 Me. 390, 59 Atl. 535; ery, provided the insured is wholly Shirts v. Phenix Acci. & Sick Ben. and continuously disabled from

disabled from Asso. 135 Mich. 439, 97 N. W. 966. performing any act or duty pertain- It therefore foling to any business or occupation. lows that it was re- -health

confinement These contracts of versible error for in house. Insuranceconstruction insurance,

where the court below to of contract.

the terms are plain give the above instruction to plainand unambiguous, are to be con- tiff. strued like any other contracts be- The testimony of a physician, tween parties. It is only where the who was called in to see the insured terms are ambiguous or doubtful about two months after this policy that the doubt is to be resolved in was issued, is that at that time the favor of the insured and against insured was suffering with estivo the insurer.

autumnal fever, which is chronic There are a great many cases

malarial fever. This physician was construing the meaning of policies unable to testify whether the inrequiring that the insured must be sured was so suffering at the time confined to his bed, or to the house, this policy was taken out. Clause or within the house. In a number H in this policy, among other of these cases, as in the King Case, things, provides as follows: "All the insured had gone out of the disability or illness resulting wholly house on the porch under the ad- or in part from strains, or from vice of his physician. A majority hernia, orchitis, venereal or chronic of these cases hold that this disease,

the limit of the would not prevent a recovery. company's' liability shall be one

This clause is to be fourth of the amount which would -provision for liberally construed otherwise be payable under this

to give effect to the policy, and the limit of the com

intent and purpose pany's liability under this paraof the contracting parties, and graph shall not exceed two month's means that when the insured is ill disability, anything herein to the enough to be confined to his house

contrary notwithstanding." and is so confined, except when he gets up under the advice of a physi- defendant gave it as his opinion

A physician who testified for the cian in order to try to improve his health, then a recovery may be al

that the insured must have been lowed. A few courts strictly con

suffering with this chronic malaria strue similar clauses in insurance

at the time the policy was issued. policies, but the decided weight of The appellant was refused the folauthority is to give such clauses a lowing instruction : liberal construction. Similar clauses

“The court instructs the jury for have been passed upon and dis

the defendant that if they believe cussed in the following cases: Scales from the evidence in this case that v. Masonic Protective Asso. 70 N. C. J. Nirdlinger suffered from estivo H. 490, 48 Atl. 1084; Cooper v. autumnal fever, and that it was Phønix Acci. & Sick Ben. Asso. 141 chronic, and that he at the time of Mich. 478, 104 N. W. 734; Hoffman his application to defendant herein v. Michigan Home & Hospital Asso. for insurance and at the time said 128 Mich. 323, 54 L.R.A. 746, 87 N. insurance was issued to him had

confinement in house.

(115 Miss. 74, 73 So. 875.) this above-named fever, then the wise payable under this policy for jury cannot find for the plaintiff in two months under clause H. The a sum greater than $50.

meaning of this clause is ambigu"The court further instructs the

OUS. Therefore, construing the jury for the defendant that if from same against the insurer and in the testimony they should find for favor of the insured, the words, the plaintiff in computing the dam- "venereal or chronic disease," withages, they are restricted to the time out the word "disease" following from May 14, 1914, to August 5, the word “venereal,” and with no 1914."

comma or other punctuation mark The appellant contends that un- between them, we

-chronic der the testimony of these two phy- think its meaning disease sicians it was a question of fact to here is chronic dis

construction. be decided by the jury whether or ease of like character with venereal not the insured was suffering from diseases.

diseases. It therefore follows that this chronic malaria at the time this the court was correct in refusing policy was issued. That if he was, this instruction asked by the appelthen his recovery would be limited lant. to one fourth of the amount other- Reversed and remanded.


Health insurance; provisions excluding or limiting liability in case of chronic


It will be observed that in the reported case (AMERICAN LIFE & ACCI. INS. Co. v. NIRDLINGER, ante, 871) a provision of the health policy involved, limiting liability in case of "illness resulting wholly or in part from strains, or from hernia, orchitis, venereal or chronic diseases," was held to be ambiguous and therefore construed to mean chronic diseases of like character with a venereal disease, so that it did not limit liability in case of chronic malaria.

There is as yet little authority upon the question under consideration, and a collection of the cases is therefore of unusual value. In Kingkade v. Continental Casual

Co. (1912) 35 Okla. 99, 128 Pac. 683, a health policy provided for the payment of a certain indemnity, "subject to the conditions hereinafter specified," and a rider provided for the indemnity in the event the insured was ill from "nephritis ... acute meningitis" etc., and further provided that it did not cover disability resulting from "any chronic disease or any disease in other than acute and fully developed form." The court in this case refused to sustain the insured's contention that because the word

"acute" was used with meningitis, and not used with nephritis it was the intention to insure against chronic as well as acute nephritis, and said: "Looking, therefore, to the language of the contract before us, we find that the payment promised by the company to the insured in the event he was ill from any of the diseases named was in the first paragraph made 'subject to the conditions hereinafter specified. One of the specified conditions was that it did not cover any disability occasioned by or resulting from any chronic disease or any disease in other than acute or fully developed form. Now, if the whole of the con. tract is to be taken together and effect given to every part thereof, as required by the common law, as well as by our statute, it seems clear that one suffering from any one of the diseases mentioned that was chronic was not within the intention of the parties to this contract. In order to allow plaintiff to recover, it would be necessary to run the judicial pen through this plain, unambiguous, controlling, and limiting provision agreed upon by the parties, and make an entirely different contract for them than the one into which they entered. If chronic

[ocr errors]

nephritis could be recovered for, then said: "The presiding judge at the every other of the diseases mentioned, close of the charge gave this instrucalthough chronic, with the exception tion requested by the plaintiff: 'The of acute meningitis, might likewise, if disease would not be a "chronic dissuch a form could be developed, be re- ease," as the words are used in article covered for. In a lengthy pact of this 6 of the policy unless the jury are character every condition cannot be satisfied by a preponderance of the inserted in the first line, nor perhaps evidence that he suffered with it when in the first paragraph; but it would he made the application, it would not require something more than putting be "chronic" within the meaning of a controlling provision of the charac- article 6 of the policy. This in effect ter here involved in a later paragraph confines a chronic disease that would to authorize us to eliminate it and limit the measure of damages to one hold that a health insurance company existing when the application was was engaged in the business of in- made. This is clearly wrong.

A demnifying people afflicted with chron- chronic disease existing at that time ic diseases against being sick."

would not merely reduce the amount In Strickland v. Peerless Casualty of liability, but would preclude any Co. (1914) 112 Me, 100, 90 Atl. 974, liability whatever, and therefore any where the application contained an in- recovery. The chronic disease conterrogatory as to whether the appli- templated in article 6 is one arising cant had any chronic disease, and the after the application was made, and policy provided that it should be void it was for the jury to say whether the if any answers in the application were broken compensation for which the false, it was held that "chronic diseas- plaintiff was seeking to recover was or es” as used in a further provision of was not an acute condition resulting the policy limiting liability in the event from a chronic disease, and they of disability or illness resulting whol- should not have been obliged to find ly or in part from “chronic diseases" that such chronic disease existed at referred to diseases which arose after the time the application was made." the application was made. The court

J. T. W.

[ocr errors]

E. K. COLWELL, Appt.,

Oregon Supreme Court (Dept. No. 1) - April 18, 1919.
(- Or.

179 Pac. 916.) Limitation of actions on bank check.

1. The limitation period upon a check delivered and accepted in the place where the drawee bank is located begins to run at the close of the next business day after such delivery.

[See note on this question beginning on page 881.] Check purpose of.

Trial question for court reason2. A check is an instrument de

able time. signed for use presently, and not for 4. Where all the facts are ascera permanent investment.

tained either by the pleadings or by [See 5 R. C. L. 478, 479.]

special verdict, the court must decide necessity of presentment.

what is a reasonable time for the pres3. To enable the payee of a check to

entation of a bank check for payment. enforce his remedy upon it against [See 3 R. C. L. 1194; 5 R. C. L. the drawer, he must present it for

508.] payment to the bank upon which it was Check — time for presentation. drawn within a reasonable time.

5. The reasonable time for presenta[See 5 R. C. L. 502.]

tion of a check delivered and accepted

« НазадПродовжити »