Massachusetts Protective Ass'n v. Picard

BRYAN, Circuit Judge. In an action on the health feature of an insurance policy the insured, Dr. Picard, recovered judgment upon a trial held before the district judge without a jury. Pending this appeal by the insurance company the insured died, and his administratrix was substituted as appellee. The only material assignment of error is that the court erred in refusing to grant appellant’s motion for a judgment in its favor. The policy sued on insures against loss of time resulting from disease which causes total disability and requires the regular and personal attendance of a licensed physician. Clause E provides that the insurance shall not cover periods of disability exceeding 365 days in the aggregate; and it defines total disability to mean inability to engage in any gainful occupation. A “continuous disability rider,” which was attached to the policy, is copied in the margin.1 An additional premium was charged for the rider, but it was much less than the premium charged for the policy. The insured became totally disabled from arterio-sclerosis in September, 1931, and so remained until his death which occurred at some time subsequent to the entry of the judgment in October, 1933. A few days before the period of liability under the face of the policy expired on September 26, 1932, Dr. Picard had returned to his home in Shreveport, La., from an automobile trip he had taken to see a heart specialist at Galveston, Tex., on whose advice he continued on to Monterey, Mexico; but after his return from that trip he remained at home and in his house upon the advice and under the care of his two physician friends, Drs. Lloyd and Boden-heimer. Upon their advice he daily took a short walk of a block or two and a short automobile ride. On at least one occasion he visited his dentist in Shreveport. Dr. Lloyd prescribed these walks and automobile rides. Dr. Bodenheimer testified that in making his professional calls he sometimes drove by Dr. Picard’s house and took him riding, and then to his, Bodenheimer’s, office for examination and a short rest; that he took Dr. Picard out to give him relief from the monotony of remaining in the house all the time, as he thought short automobile rides had a soothing effect on Dr. Picard’s nerves, and was beneficial rather than injurious. It is suggested that confinement within the house was unnecessary because shortly before it began the insured was able to ride from Shreveport to Galveston in his automobile to see a specialist; but we do not think that this circumstance alone is sufficient to overcome the opinion of the doctors and the finding of the trial court that confinement became reasonably necessary before the expiration of the 365-day period covered by the face of the policy and before the effective date of the rider. That trip was taken by the insured in a vain search for relief, and occurred at a time when he had the right under his policy to make it. It cannot be held against him for anything done after the rider became effective. Appellant’s real contention is that the insured, though totally and continuously disabled by disease, was not “confined within the house” within the meaning of the rider. Policies of this kind, though varying somewhat in phraseology, have been many times before the courts. A rather strict construction has been applied to them in the cases which immediately follow: Rocci v. Massachusetts Accident Co., 222 Mass. 336, 110 N. E. 972, Ann. Cas. 1918C, 529; Reeves v. Midland Casualty Co., 170 Wis. 370, 174 N. W. 475, 959; Buske v. Federal Casualty Co., 200 Wis. 18, 227 N. W. 239; Dunning v. Massachusetts Mutual Accident Association, 99 Me. 390, 59 A. 535; Sheets v. Farmers’ & Merchants’ Mut. Life & Casualty Ass’n, 116 Kan. 356, 225 P. 929; Richardson v. Interstate Business Men’s Acc. Asso [686] ciation, 124 Kan. 685, 261 P. 565; Cooper v. Phoenix Accident & Sick Ben. Association, 141 Mich. 478, 104 N. W. 734; Mutual Ben. Health & Acc. Association v. Ferrell (Ariz.) 27 P.(2d) 519. On the other hand, a more liberal construction has prevailed among other courts of equal dignity. Jennings v. Brotherhood Accident Co., 44 Colo. 68, 96 P. 982, 18 L. R. A. (N. S.) 109, 130 Am. St. Rep. 109; Mutual, etc., Association v. McDonald, 73 Colo. 308, 215 P. 135; Metropolitan Plate Glass & Cas. Ins. Co. v. Hawes, 150 Ky. 52, 149 S. W. 1110, 42 L. R. A. (N. S.) 700; Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750; Massachusetts Protective Association v. Oden, 186 Ark. 844, 56 S.W.(2d) 425; Newton v. National Life Insurance Co., 161 La. 357, 108 So. 769; Mackprang v. National Casualty Co., 127 Neb. 877, 257 N. W. 248; Ætna Life Insurance Co. v. Willetts, 282 F. 26 (C. C. A. 3). See, also, notes in 49 A. L. R. 965 and 6Í A. L. R. 642. Nearly all the cases above cited which stand for a strict construction apparently realize that some exception must be recognized, as, for example, that the patient will be considered as continuously confined within his house although he be taken to a hospital for treatment upon the advice of his. attending physicians. We do not go so far as to approve the liberal rule announced in some jurisdictions, but we do think that the clause in question should be so construed as.to authorize the patient to be taken to his physician’s office, or under his physician’s orders to take short walks for exercise, or short rides in an automobile for fresh air, provided that the sole object and bona fide purpose is to benefit his health or alleviate his condition. As it seems to us the correct rule is laid down in Hines v. New England Casualty Co., 172 N. C. 225, 90 S. E. 131, 132, L. R. A. 1917B, 744, in approving a charge to the jury that the patient is entitled to indemnity while kept in his home on account of total disability and not allowed to leave “for any purpose not connected with his sickness. If during such illness he was able to visit friends or his place of business, he would not have been ‘confined.’ But if acting under the directions of the physician he called at his doctor’s office, or the mere fact that he walked out under his. directions as a part of the treatment the physician, was giving him, this would not require the - jury to find that he was not confined in his home.” •To the sanie effect is Garvin v. Union Mutual Casualty Co., 207 Iowa, 977, 222 N. W. 25, 61 A. L. R. 633. As the primary purpose expressed in the policy was to indemnify the insured against loss of timé in the event he should become totally disabled as the result of accident or disease, in óur opinion the rider ought to have been more explicit in its terms if the intention was to terminate the insurance if the insured, though acting upon the advice of his physicians and for his health’s sake, should ever go beyond the four walls of his house. The judgment is affirmed. Footnotes [1] “For total disability arising prior to tbe insured’s sixtieth birthday and before the expiration of the 365 days described in Clause E of the attached policy, the weekly indemnity provided by said policy shall continue to be payable to the insured beyond said 365 days so long as he thereafter lives and is continuously totally disabled by accident, or similarly disabled and necessarily confined within the house by disease, in either ease under the regular care of a licensed physician. Total disability due to tuberculosis, paralysis, blindness, insanity, paresis, cancer or lo-comotor ataxia shall however be construed as confining sickness hereunder irrespective of whether or not the insured be strictly confined within the house. In all other respects the terms, provisions, and conditions of said Policy remain the same.”