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American Liability Company. Judgment for jessary result, independent of all other causes. plaintiff, and defendant appeals. Afirmed. of bodily injuries effected through external, vio.

lent, and accidental means. Kittinger & Diven, of Anderson, for appellant. Albert H. Vestal, of Anderson, for ap

“Illness Indemnity. pellee.

"E. At the rate of forty dollars per month for the number of consecutive days (deducting

the first week unless continuing twenty-eight FELT, C. J. On July 12, 1913, appellee be consecutive days) that the assured is strictly gan this suit against appellant on a health and continuously confined within the house and and accident insurance policy.

The issues therein regularly visited and treated by a legalwere formed by a complaint in one para disabled by reason of illness having its cause

ly qualified physician and necessarily totally graph answered by a general denial. A trial and beginning after this policy has been mainby the court resulted in a judgment for ap- tained in continuous force for thirty days; and pellee in the sum of $240, from which this ap- confinement, the assured shall be necessarily and

if, during convalescence following said house peal was taken.

continuously. disabled from performing every Appellant has assigned as error the over-duty pertaining to any business or occupation, ruling of its motion for a new trial, and and require and receive the regular attendance separate error on each of the five conclusions of such physician, the company will pay him

indemnity at one-half of said rate for the period of law stated upon the special finding of of such

convalescence not exceeding four facts duly made by the court.

weeks. The complaint, in substance, charges that

“Miscellaneous Provisions. on September 7, 1910, appellee applied for and obtained a policy in appellant company, either accident or illness, wholly or in part caus

• 2. In the event of disability, due to whereby it promised, in the event of bodily ed by or resulting directly or indirectly in or injury resulting through external, violent, complicated with tuberculosis, rheumatism, paand accidental means, to pay appellee $40 ralysis, apoplexy, orchitis, neuritis, locomotor per month so long as he should be prevent- ataxia, lumbago, lame back, strains, sciatica,

vaccination, Bright's disease, cancer, dementia, ed from performing his ordinary business bernia, insanity, or in the event of any accidenby reason of such injuries; that he complied tal injury otherwise covered by this policy re. with all the provisions of the policy so is- sulting in hernia, terminating fatally or other.

wi then in all such cases referred to in this sued to him, and on November 17, 1912,

paragraph, the only liability of the company while the policy was in force, he received shall be indemnity for a period of disability not a personal injury which was caused by the exceeding four weeks in any one policy year, slipping of a ladder on which he was work- anything herein to the contrary notwithstand

ing. ing, whereby he was thrown ten feet to and

*6. The company may cancel this policy at any upon a cement floor which caused an injury time, without prejudice to the rights of the asto his back, side, and spine; that by reason sured as to any claim then pending, by written of such injuries he was prevented from fol- notice of cancellation served upon the assured

or mailed to the assured at the address herein lowing his occupation or attending to any given, together with the company's check for the work or business continuously from the 17th unearned portion, if any, of the premium paid. day of December, 1912, and still is totally "7. Indemnity will not accrue hereunder in disabled and prevented from performing any injury or illness, under the professional care

excess of the time the assured is, by reason of duty pertaining to any business or occupa- and regular attendance of a legally qualified tion; that due proof of his disability for the physician or surgeon. If the assured is disabled period of six months was furnished appel- by injury or illness for more than thirty days, lant and payment was refused.

he or his relatives shall as a condition precedent

to recovery hereunder furnish the company evThe policy is made a part of the complaint ery thirty days with a report in writing from as “Exhibit A,” and it is a verred that there his attending physician or surgeon, fully stating is due thereon the sum of $280, for which the condition of the assured and the probable

duration of the disability. judgment is demanded.

"9. This policy, with the schedule of warThe finding of facts follow the averments ranties indorsed hereon, contains the entire conof the complaint, and, omitting uncontrovert- tract between the parties hereto, and no agent ed statements, is in substance as follows: has authority to change it or waive any of the On September 7, 1910, appellee was

provisions. * *

"2. That on the reverse side of said policy, able-bodied man in good health, and in sound in written and printed matter, under the head physical condition, and on that day appel- and title of Schedule of Warranties,' was inlant issued to him a health and accident dorsed the following language: palicy, the substance of which, as far as ma

“Schedule of Warranties. terial here, is as follows:

"By accepting this policy the assured agrees The policy to be in force until 12 o'clock noon that each statement in this schedule is material, of October 1, 1910, "and for such further peri- and warrants each to be true. ods as the premium paid will maintain this pol "I agree to pay a monthly premium of one icy in force.

and 20/100 dollars in advance without notice or

demand." "Total Accident Disability. "A. At the rate of forty dollars per month for

The court also found that from the issuthe period, not exceeding twenty-four consecu- ance of said policy appellee promptly paid all tive months, that the assured is totally and dues and premiums on same up to and includcontinuously from the date of accident disabled and prevented from performing every duty per- ing the 7th day of June, 1913; that on Notaining to any business or occupation, as a nec-vember 17, 1912, while working at his usual

114 N.E.-63

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employment, the ladder on which appellee, further communications with appellant and was standing slipped and threw him to the sent additional preliminary reports made out floor and injured his right side and hip, and by his physician, the details of which are his back in the region of the crest of the found and set out by the trial court; that on ilium, which injury was accompanied by an April 1, 1913, appellant called for "final proof external visible bruise and discoloration; of illness," and on May 31, 1913, after further that he was thereby totally disabled immedi- correspondence, appellee made out proof of ately after receiving such injury and con- bis injury and sent same to appellant, togethtinuously for about four days; that immedi-er with the statement of his physician, on ately after receiving the injury appellee was blanks provided by appellant; that on July 'removed to his home, and on that day was | 12, 1913, appellant notified appellee that after visited and treated for said injuries in his careful examination of his claim from the home by a physician, and at the end of said statements of himself and his physician the four days he was still suffering from his in- company bad concluded his disability was juries and returned to his work; that con- due to neuritis, and the company's liability tinuously thereafter, except on Sunday, until therefor was limited to four weeks in any December 27, 1912, he went to his work "and one policy year, and that in payment thereof attempted to perform his duties under his it inclosed draft payable to him for $30.66; employment, and did perform a great part of that on July 29, 1913, appellee by his attor. said duties; but that his performance of neys returned the draft for $30.66, and also said duties was with great pain and suffer- a check for $3.60 sent by appellant as a reing, and there was a considerable portion of turn of unearned premiums paid by appellee, said duties be was unable to perform and re- and also notified appellant that its alleged quired the assistance of another man in per- reasons for refusing to pay full indemnity forming the services which he, had it not were unfounded and that suit had been combeen for said injury, would have been able to menced to recover the amount due appellee. perform himself, and did perform himself The court also found that all the aforesaid prior to the receiving of such injury"; that disabilities of appellee are the necessary reon December 27, 1912, the suffering from sult, independent of all other causes, of the said injuries became so severe that he was bodily injury aforesaid so received by appelunable to perform any labor, and from that lee; that appellee had substantially comdate continuously to the present time (case plied with all the terms and conditions of the was tried in June, 1914) has been wholly and policy to be performed by him, and that aptotally disabled from performing manual la pellant by its conduct and dealings with apbor, or pursuing his avocation, or performing pellee has waived all irregularities and techany of the duties of his employment, and has nical omissions on his part required by the been continuously under the care and treat- provisions of the policy issued to him. ment of a regularly licensed physician; that On the foregoing finding of facts the court said injury was entirely received from exter- stated its conclusions of law as follows: nal, violent, and accidental causes, and ap (1) The law is with appellee, and he is entipellee's disability aforesaid was directly and tled to recover $240. immediately caused by such injury; that on findings was accepted by appellant as notice

(2) That the notice of injury stated in the January 16, 1913, said injury produced neu- under the terms of the policy, and was furnished ritis, from which appellee has continuously within reasonable time after receiving the injury suffered, and by reason of which he has been within the meaning of the law applicable thereto. entirely and totally disabled from performing under the heading Miscellaneous Provisions, manual labor as aforesaid, and rendered in said policy, does not preclude the plaintiff's wholly unable to perform any part of his right to recover on said policy, nor limit his usual work or to earn any money by his la- right to recover to a period of four weeks in

any one policy year. bor; that said neuritis is not an independent

"*(4) That the plaintiff is entitled to recover his disease, but is coupled with and the result costs in this action. of said injury and was wholly caused thereby, “(5) That the plaintiff's right to recover on The court also finds that on January 17, account of the injury in suit, for disability suf

fered after the time of the commencement of 1913, appellee notified appellant in writing of this action, is in no way an issue in this cause, said injury which notice was received by ap- and is not in any way litigated, determined, or pellant; that later, at request of appellant, adjudicated, nor the rights of either party'af

fected or prejudiced. appellee sent to the company the statement of

“This the 11th day of June, 1914. his attending physician and filled out the pre

"Chas. K. Bagot, liminary notice furnished him by appellant,

"Judge of the Madison Circuit Court.” all of which were received by appellant; that Under points and authorities appellant conon February 21, 1913, appellant called for a tends that the findings show that appellee second preliminary report, which was fur- was not "totally and continuously from the nished it on March 1, 1913, and on March 3, date of accident disabled and prevented from and again on March 8, 1913, appellee sent to performing every duty pertaining to any appellant another proof of injury made out business or occupation" within the meaning by his physician, and at appellant's request of the provisions of his policy, and that the

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ing him full indemnity for six months; that, policy we are compelled to hold that he does under paragraph 2 of "Miscellaneous Provi- not come within the provisions which allow sions” of the policy appellee was only liable compensation for total disability, then the for four weeks' indemnity, which was duly first and third conclusions of law are erronetendered him, and that the court therefore ous. erred in its first and third conclusions of The findings disclose a situation where law; that the fifth conclusion of law is out the injury was more severe and the results side the issues. No point is made or urged more permanent and harmful than they at against the second or fourth conclusions of first appeared to be, and in which the injured law.

party showed unusual desire and put forth We limit our discussion to the points pre- an extraordinary effort, to labor while still sented, and by them appellant concedes lia- incapacitated by his injuries. He was in no bility for four weeks' sickness, and claims sense a malingerer, and the facts present the the benefit of its tender, but asserts that ap- question whether by his premature effort to pellee is not entitled to recover for total dis- labor while so incapacitated he is, under ability for any period of time under the pro- the provisions of his policy, deprived of comvisions of the policy and the facts found by pensation which he would clearly be entitled the court.

to receive had he remained away from his [1] Insurance contracts providing indem- employment, and made no effort to labor, as nity for disability or death of the insured, the severity of his injury and the intensity which are prepared by the company, and are of his suffering clearly warranted him in ambiguous, or reasonably subject to conflict-doing. ing interpretations, are strictly construed [4] The rule prevails in this and most ju. against the company, and are given such rea- risdictions that provisions in a policy for sonable and liberal construction as will ef- total disability, irrespective of the technical fectuate the purpose of the parties and sus- variations in the language employed, should tain rather than defeat the object of entering be given a rational and practical construcinto the contract, where it can be done with tion; that the phrase "total disability” is a out doing violence to the language employed. relative term, depending in measure upon

[2] In construing such contracts courts the nature of the employment, the capabiligive to the language employed a fair and ties of the injured person, and likewise the reasonable construction, and in so doing con. circumstances and peculiar facts of each parsider also the relation and situation of the ticular case. parties when the contract was entered into, It is usually a question of fact to be deand from such considerations seek to ascer- termined by the court or jury trying the tain the meaning or propositions upon which case, and was such question in the case at the minds of the contracting parties may rea- bar. Indiana Life, etc., Co. v. Reed, 54 Ind. sonably be said to have met at that time. App. 450 467, 103 N. E. 77, and cases cited ; Hay v. Meridian Life Ins. Co., 57 Ind. App. Workingmen's Mut. Prot. Ass'n v. Roos, 113 536-545, 101 N. E. 651, 105 N. E. 919; Indi. N. E. 760; rolume 4, Cooley's Briefs on Ins. ana Life Endowment Co. V. Reed, 54 Ind. pp. 3288–3290; Kerr on Insurance, p. 385. App. 450 465, 103 N. E. 77, and cases cited ; Where a party is shown to be in fact toWorkingmen's Mut. Prot. Ass'n v. Roos, 113 tally disabled for the entire period for which N. E. 760, and cases cited.

compensation is sought, it cannot be held as [3] The facts found are amply sufficient to a matter of law that he was not disabled beshow total disability of appellee for the req. cause during a portion of such time he made uisite period of time, and the chief difficulty a good-faith, though ineffectual, effort to perarises from a consideration of those facts form the duties of his usual employment. which show that four days after his injury, [5] Nor could he be held to be totally diswhile still suffering from the effects thereof, abled because he failed or refused to labor, he returned to his work, and for more than when he had the opportunity so to do, if in a month performed a large part of the du- fact he was at the time reasonably able to ties of his employment, though during all perform such labor. Pacific Mutual Life such time he continued to suffer intensely Ins. Co. v. Branham, 34 Ind. App. 243-246, and was greatly incapacitated, and then final. 70 N. E. 174; Commercial Travelers' Mutual ly, from the effects of his original injury, Accident Ass'n v. Springsteen, 23 Ind. App. which had become more severe and malig- 657–662, 55 N. E. 973; Indiana Life, etc., Co. nant, be became wholly unable to perform v. Reed, supra; Young v. Travelers' Ins. Co., any labor of any kind, and was confined to 80 Me. 244–247, 13 Atl. 896; Hohn v. Interhis home for treatment, and likewise the State Casualty Co., 115 Mich. 79, 72 N. W. finding which shows that the injury caused 1105; Turner v. Fidelity & Casualty Co., 112 neuritis.

Mich. 425, 70 N. W. 898, 38 L. R. A. 529, 67 If the performance of such labor under the Am. St. Rep. 428; Lobdill v. Laboring Men's conditions shown destroys or so modifies the Mut. Aid Ass'n, 69 Minn. 14, 71 N. W. 696, findings, which show total and continuous 38 L. R. A. 537, 65 Am. St. Rep. 542. disability due solely to appellee's injury, for [6] In several of the cases above cited it is the requisite period of time, that under his stated, in substance, that provisions for total

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disability similar to those in the policy now, riods as the premium paid will maintain this under consideration, in all cases of doubt, policy in force, against the contingencies as should be liberally and fairly construed as to

hereinafter provided. give to the insured the indemnity which he

"Total Accident Disability. contracted to obtain, and at the same time “A. At the rate of forty dollars per month for the language employed should be so

the period, not exceeding twenty-four consecu

tive months, that the assured is totally and strued as to serve the purpose of guarding continuously' from date of accident disabled and the company against fraud or imposition. prevented from performing every duty pertain

In the case at bar the finding of the court ing to any business or occupation, as a necesshows that the conclusion reached was con- sary result, independent of all other causes, of

bodily injuries effected through external, viosistent both with the idea of providing the lent, and accidental means." indemnity contemplated by the parties when the contract was entered into and of effectu, followed by numerous detailed specifications

The foregoing provisions of the policy are ally safeguarding the company against fraud

relating to “Partial Accident Disability," or imposition of any kind. Such construction gives effect to the whole contract and "Iness Indemnity,” “Extended Illness In

"Specific Total Losses,” “Double Indemnity," effectuates the purpose which the minds of

demnity," and some ten or more other generthe contracting parties met when the policy al headings or topics which are followed by was issued by the company and accepted and detailed specifications and statements in fine paid for by the insured.

To allow appellee only four weeks' sick print and these are followed by the general benefits, in the face of the finding which consist of nine paragraphs, and on the re

heading, “Miscellaneous Provisions," which clearly shows total disability for over six months, and an actual cessation of labor for of Warranties," a copy of the application,

verse side of the policy appears “Schedule most of that time, and for all the time, but various stipulations and limitations, and an for the extraordinary conduct of appellee in a good-faith effort to work while disabled in the policy. The provision relied upon by

agreement to pay the premiums as specified and still suffering from the continuing ef

appellant to limit recovery to four weeks is fects of his injury would require a narrow

found in clause 2 of "Miscellaneous Provi. and technical construction of the policy in sions,” which is as above set forth. favor of appellant, notwithstanding the facts found show that it was in no sense imposed ment of neuritis, but that appellee was total

The finding not only shows the develop upon by fraud or unfair dealings, and has only been called upon to pay the amount it ly and continuously disabled up to the time

of the trial in June, 1914. obligated itself to pay under such conditions

After concluding the findings which set as are shown by the findings. Such narrow forth the injury, the development of neuritis, construction would tend to place a premium and the disability of appellee, the court states on fraud and deception, to discourage fair

the ultimate fact: ness and effort to return to employment as

"That all the aforesaid disabilities of appellee soon as possible after an injury, and in the are the necessary result, independent of all othend would result in greater hardships to in- er causes, of the bodily injury aforesaid so re surance companies than the broader and ceived by appellee." more liberal construction which affords suffi. This is clear statement that, notwithstandcient latitude to enable courts in applying the ing neuritis developed from the injury, aplaw to particular cases to discriminate be- pellee was continuously and totally disabled tween malingerers and those who in fairness by the original injury, independent of neuri. and honesty have reasonably and substantial- tis or any other cause other than such inly complied with the provisions of insurance jury; in other words, the period of total discontracts like the one under consideration. ability for which appellee was allowed com

[7] But it is also contended in this case pensation was independent of, and not change that the finding which shows that the injury ed or prolonged by, neuritis. produced neuritis, from which appellee con To hold that the development of neuritis tinuously suffered, and by reason of which he would shorten the period of compensation to was totally disabled, brings the case squarely four weeks under such a state of facts would within the provisions of clause 2 of "Miscel-be to bring the provisions of said clause 2 laneous Provisions" of the policy, and limits into conflict with and make them contradicthe period for which compensation may be tory of the general provisions on the face allowed to four weeks. Considering only of the policy which promise compensation for such finding and said clause 2, the contention total disability for a period of time not exseems to have merit. But we must consider ceeding twenty-four months. The provisions all the provisions of the policy and all the of said clause 2 may apply to cases in facts found by the court which bear upon which neuritis or other diseases named dethe question of the compensation due appel- velop and in which it is not shown that the lee. On the face of the policy it is stated period of disability for which compensation that:

is allowed was entirely independent of and The "American Liability Company insures the not prolonged by such disease. Such con. person named assured

from the struction gives effect to the general provi.

as

limiting the period of compensation to four The tenth finding states, in substance, that weeks, under certain specified conditions, is on January 16, 1913, the injury produced reasonable, and is consistent with the object neuritis, the center of which was immediatesought to be attained by the issuance and ac- ly in the locality of the injury, and that ceptance of the policy.

appellee suffered therefrom continuously [8] But if we should take the view that thereafter to the time of the trial and was the provisions of said clause 2 necessarily thereby totally disabled. mean that compensation is to be limited to The fortieth finding states that all of the four weeks in every case where one of the disabilities heretofore found from which the specified diseases develops, regardless of the plaintiff suffered “are the necessary result, character and extent of the original injury independent of all other causes, of the bodily and the period of time during which total injury so affected through the external and disability resulted therefrom independent of accidental means heretofore found and statall other causes, still on the facts of this ed." case we should reach the same result. Ap Appellant only points out an inaccuracy in pellee sought indemnity, and appellant agreed the tenth finding in the date, by the substituto furnish it according to the provisions of tion of January 16, 1913, for December 27, the contract. The first and prominent pro- 1912. The criticism is probably correct, but vision of the policy is clear in its promise of is only another unimportant minor detail as $40 per month for total disability. The con- the particular date could not change the imstruction of said clause 2 last above indi- portant ultimate facts relating to the injury cated would be inconsistent with and con- and the results that followed. tradictory of the provision for total dis (11) Both the tenth and fortieth findings ability and would render the policy am- state ultimate facts that are important and biguous. We should then apply the rules of within the issues. There is evidence from construction above stated and be compelled which the ultimate facts so stated could be to hold that the minds of the contracting reasonably inferred, and the trial court was parties never met upon such proposition, entirely within its province in so stating and that appellant promised to indemnify ap- them. Ultimate issuable facts are proper pellee to the extent of $40 per month for in special findings, and are the facts which continuous total disability, and that, inas- must control the conclusions of law drawn much as the finding of fact shows such dis- from the facts, since mere evidentiary facts, ability independent of the neuritis that de- though often found in special findings, are veloped, such disease is only incidental to improper and unauthorized. the case, and does not materially affect or [12] The seventh finding deals with appelchange the ultimate fact of total disabil- lee's return to his employment, his incapacity ity due, as the court found, solely and ex- and suffering, and the assistance he had in clusively to the original injury.

the performance of his duties when he reWe therefore conclude that the court did turned to his work four days after his innot err in either the first or third conclu- jury. sion of law.

The evidence shows that appellee was a [9] The fifth conclusion of law, to the ef- fireman, and that the engineer helped him fect that appellee's right to recover for dis perform his duties when he was feeling badability suffered after the commencement of ly, and that prior to his injury he readily this suit is not in issue or determined by performed all the labor required in his posithis suit, was not essential to the judgment tion without any assistance. in this case, but it only states what is appar The trial court had the right to draw ent from the pleadings, and the finding of from the evidence any reasonable inference, the court, in any view that may be taken of and while the evidence on the points of the it, would not afford a cause of reversal if amount of the assistance needed and rethe judgment is otherwise correct.

ceived by appellee at such time is somewhat Under the motion for a new trial appel- meager, we cannot say there is a total faillant contends that the court's findings Nos. ure of evidence from which the court might 6, 7, 10, and 40 are not sustained by sufficient infer the facts stated in such finding. evidence.

The court found and stated the ultimate [10] In finding No. 6 the court stated that facts which warrant recovery for six months' immediately after his injury appellee was total disability, and there is evidence tending removed to his home in a vehicle, and on the to prove all of such facts. The findings supsame day a physician was called to the port the conclusions of law on which the home who treated him for his injury. We judgment rests. find no evidence that he was taken home We find no reversible error. The case in a vehicle, but the undisputed evidence seems to have been fairly tried on its mershows that he walked home by the help of its, and a correct result reached. Section Mr. Garrison, and that a physician was call. 700, Burns 1914. ed who treated him as stated in the finding. Judgment affirmed. The inaccuracy is an unimportant minor detail which in no way affects the ultimate IBACH, P. J., and DAUSMAN, CALDfacts found by the court or the conclusions WELL, BATMAN, and HOTTEL, JJ., conof law drawn therefrom.

cur.

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