Natlonal Life & Accident Ins. v. King

Cook, J., delivered the opinion of the court. Appellee instituted suit in the justice court 'against appellánt on two .insurance policies which purport to indemnify him against illness. Policy No. 25,254 is called “special occupation policy,” and policy No. 795,771 is called “policy of insurance covering life insurance combined with weekly indemnity for sickness and accident. ’ ’ Appellee, plaintiff below, recovered judgment in the justice court upon both policies, and appellant appealed to the circuit court. On the trial in the circuit court, the trial judge, after hearing the evidence, charged the jury as follows: “The court chárges the jury to find for plaintiff, and assesses his damages in the amount of fifteen dollars under policy No. 795,771, and the the amount of forty dollars under policy No. 25,254” — and this action is assigned for error in this court. It will be observed that policy No. 25,254 is denominated by the company issuing the same as “special occupation policy,” and, in order to determine the conditions of said policy, it is, of course, important to keep in mind for what purpose the policy was issued. Subdivision (e), so far as the same may relate to the question involved here, reads: “ Or at the rate of ten dollars per week for the number of consecutive days, after the first seven, that the assured is necessarily and continuously confined within the house, and therein regularly visited by a legally qualified physician, by reason of. illness,” etc. Subdivision (k) is as follows: “In the event of disability, due to either accident or illness, resulting wholly or in part, directly or indirectly, from tuberculosis, rheumatism, . . . lumbago or in the event of any accidental injury otherwise covered by this policy resulting in hernia, then, and in all such cases referred [479] to in this paragraph, the limit of the company’s liability shall be an indemnity for the period disabled, not exceeding four-weeks at the rate which would otherwise be payable tinder this policy, anything herein to the contrary notwithstanding. ’ ’ Appellee was taken sick on the 6th day of October, 1909, with lumbago, and was unable to do anything until the. 7th day of November, and was confined to his bed for a week, and then called in the doctor. The doctor upon his arrival advised the patient that it would be better for him to get up as much as possible, and exercise all he could, in order to shorten the duration of his attack. Acting upon his advice, plaintiff did, at intervals, get out of bed and attempt to take exercise, suffering pain and inconvenience in order to do so. The evidence also shows that the plaintiff sometimes went out of the room to the steps and into the yard. The purpose of this policy was to indemnify appellee against loss of time in the occupation which he was following, and, while'paragraph (e), taken alone, seems to make his confinement to his room continuously a condition precedent to his right of recovery, yet, red in connection with paragraph (k), it seems clear to us that the real test of his right of recovery depends upon whether he was disabled, during the time limit, to perform the duties required of him by his employment. It therefore follows that the trial court was right in directing the jury to find for forty dollars under this policy. Policy No. 795,771 was not what is called an “ occupation policy,” and paragraph (3) of this policy, under the head “Conditions,” says: “Weekly benefits for sickness will only be paid when the assured has been confined strictly to his or her bed for seven consecutive days.” The evidence shows that he was confined to his bed for seven consecutive days, and we find no provision in this policy which excludes the first week of sickness from the [480] benefits of tbe indemnity. Tbe trial court-was correct in its construction of this policy, and the peremptory instruction to tbe jury to find for tbe plaintiff under same was correct. Affirmed.