American Liability Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kittinger & Diven, of Anderson, for appellant. Albert H. Vestal, of Anderson, for appellee.

essary result, independent of all other causes. of bodily injuries effected through external, violent, and accidental means. *

"Illness Indemnity.

"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 legally qualified physician and necessarily totally were formed by a complaint in one para- disabled by reason of illness having its cause 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 of such physician, the company will pay him separate error on each of the five conclusions 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.

*

"Miscellaneous Provisions.

The complaint, in substance, charges that on September 7, 1910, appellee applied for * 2. In the event of disability, due to and obtained a policy in appellant company, either accident or illness, wholly or in part causwhereby 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 ataxia, lumbago, lame back, strains, sciatica, per month so long as he should be prevent-vaccination, Eright's disease, cancer, dementia, ed from performing his ordinary business hernia, insanity, or in the event of any accidenby reason of such injuries; that he complied tal injury otherwise covered by this policy rewith all the provisions of the policy so is-sulting in hernia, terminating fatally or otherwise, 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 notwithstanding. ing, whereby he was thrown ten feet to and upon a cement floor which caused an injury to his back, side, and spine; that by reason of such injuries he was prevented from following his occupation or attending to any work or business continuously from the 17th day of December, 1912, and still is totally disabled and prevented from performing any duty pertaining to any business or occupation; that due proof of his disability for the period of six months was furnished appellant and payment was refused.

The policy is made a part of the complaint as "Exhibit A," and it is averred that there is due thereon the sum of $280, for which judgment is demanded.

The finding of facts follow the averments of the complaint, and, omitting uncontroverted statements, is in substance as follows: On September 7, 1910, appellee was an able-bodied man in good health, and in sound physical condition, and on that day appellant issued to him a health and accident policy, the substance of which, as far as material here, is as follows:

The policy to be in force until 12 o'clock noon of October 1, 1910, "and for such further periods as the premium paid will maintain this policy in force.

"Total Accident Disability.

*

"6. The company may cancel this policy at any time, without prejudice to the rights of the assured as to any claim then pending, by written notice of cancellation served upon the assured or mailed to the assured at the address herein given, together with the company's check for the unearned portion, if any, of the premium paid. "7. Indemnity will not accrue hereunder in excess of the time the assured is, by reason of injury or illness, under the professional care and regular attendance of a legally qualified physician or surgeon. If the assured is disabled by injury or illness for more than thirty days, he or his relatives shall as a condition precedent to recovery hereunder furnish the company every thirty days with a report in writing from his attending physician or surgeon, fully stating the condition of the assured and the probable duration of the disability.

*

*

"9. This policy, with the schedule of warranties indorsed hereon, contains the entire contract between the parties hereto, and no agent has authority to change it or waive any of the provisions.

"2. That on the reverse side of said policy, in written and printed matter, under the head and title of 'Schedule of Warranties,' was indorsed the following language:

"Schedule of Warranties.

"By accepting this policy the assured agrees that each statement in this schedule is material, and warrants each to be true.

"I agree to pay a monthly premium of one and 20/100 dollars in advance without notice or demand.'

The court also found that from the issuance of said policy appellee promptly paid all dues and premiums on same up to and includ

"A. At the rate of forty dollars per month for the period, not exceeding twenty-four consecutive months, that the assured is totally and continuously 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

blanks provided by appellant; that on July 12, 1913, appellant notified appellee that after careful examination of his claim from the statements of himself and his physician the company had concluded his disability was due to neuritis, and the company's liability therefor was limited to four weeks in any one policy year, and that in payment thereof it inclosed draft payable to him for $30.66; that on July 29, 1913, appellee by his attorneys returned the draft for $30.66, and also a check for $3.60 sent by appellant as a return of unearned premiums paid by appellee, and also notified appellant that its alleged reasons for refusing to pay full indemnity were unfounded and that suit had been commenced to recover the amount due appellee.

The court also found that all the aforesaid disabilities of appellee are the necessary result, independent of all other causes, of the bodily injury aforesaid so received by appellee; that appellee had substantially complied with all the terms and conditions of the policy to be performed by him, and that appellant by its conduct and dealings with appellee has waived all irregularities and technical omissions on his part required by the

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- his 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 removed to his home, and on that day was visited and treated for said injuries in his home by a physician, and at the end of said four days he was still suffering from his injuries and returned to his work; that continuously thereafter, except on Sunday, until December 27, 1912, he went to his work "and attempted to perform his duties under his employment, and did perform a great part of said duties; but that his performance of said duties was with great pain and suffering, and there was a considerable portion of said duties he was unable to perform and required the assistance of another man in performing the services which he, had it not been for said injury, would have been able to perform himself, and did perform himself prior to the receiving of such injury"; that on December 27, 1912, the suffering from said injuries became so severe that he was unable to perform any labor, and from that date continuously to the present time (case was tried in June, 1914) has been wholly and totally disabled from performing manual labor, or pursuing his avocation, or performing any of the duties of his employment, and has been continuously under the care and treat-provisions of the policy issued to him. ment of a regularly licensed physician; that said injury was entirely received from external, violent, and accidental causes, and appellee's disability aforesaid was directly and 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, "(3) That the provisions of subdivision 2, 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 disease, but is coupled with and the result of said injury and was wholly caused thereby. The court also finds that on January 17, 1913, appellee notified appellant in writing of said injury which notice was received by appellant; that later, at request of appellant, appellee sent to the company the statement of his attending physician and filled out the preliminary notice furnished him by appellant, all of which were received by appellant; that on February 21, 1913, appellant called for a second preliminary report, which was furnished it on March 1, 1913, and on March 3, and again on March 8, 1913, appellee sent to appellant another proof of injury made out by his physician, and at appellant's request sent other proofs of injury, and later on had

On the foregoing finding of facts the court stated its conclusions of law as follows:

(1) The law is with appellee, and he is entitled to recover $240.

(4) That the plaintiff is entitled to recover his costs in this action.

"(5) That the plaintiff's right to recover on account of the injury in suit, for disability suffered after the time of the commencement of this action, is in no way an issue in this cause, and is not in any way litigated, determined, or adjudicated, nor the rights of either party' affected or prejudiced.

"This the 11th day of June, 1914.

"Chas. K. Bagot,

"Judge of the Madison Circuit Court." Under points and authorities appellant contends that the findings show that appellee was not "totally and continuously from the date of accident disabled and prevented from performing every duty pertaining to any business or occupation" within the meaning of the provisions of his policy, and that the court erred in its conclusions of law allow

ing him full indemnity for six months; that under paragraph 2 of "Miscellaneous Provisions" of the policy appellee was only liable for four weeks' indemnity, which was duly tendered him, and that the court therefore erred in its first and third conclusions of law; that the fifth conclusion of law is outside the issues. No point is made or urged against the second or fourth conclusions of law.

policy we are compelled to hold that he does not come within the provisions which allow compensation for total disability, then the first and third conclusions of law are erroneous.

The findings disclose a situation where the injury was more severe and the results more permanent and harmful than they at first appeared to be, and in which the injured party showed unusual desire and put forth an extraordinary effort, to labor while still incapacitated by his injuries. He was in no sense a malingerer, and the facts present the

We limit our discussion to the points presented, and by them appellant concedes liability for four weeks' sickness, and claims the benefit of its tender, but asserts that ap-question whether by his premature effort to pellee is not entitled to recover for total disability for any period of time under the provisions of the policy and the facts found by the court.

[4] The rule prevails in this and most jurisdictions that provisions in a policy for total disability, irrespective of the technical variations in the language employed, should be given a rational and practical construction; that the phrase "total disability" is a relative term, depending in a measure upon the nature of the employment, the capabilities of the injured person, and likewise the circumstances and peculiar facts of each particular case.

labor while so incapacitated he is, under the provisions of his policy, deprived of compensation which he would clearly be entitled 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 against the company, and are given such reasonable and liberal construction as will effectuate the purpose of the parties and sustain rather than defeat the object of entering | into the contract, where it can be done without doing violence to the language employed. [2] In construing such contracts courts give to the language employed a fair and reasonable construction, and in so doing consider also the relation and situation of the 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; volume 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; Workingmen's Mut. Prot. Ass'n v. Roos, 113 N. E. 760, and cases cited.

[3] The facts found are amply sufficient to show total disability of appellee for the requisite period of time, and the chief difficulty arises from a consideration of those facts which show that four days after his injury, while still suffering from the effects thereof, he returned to his work, and for more than a month performed a large part of the duties of his employment, though during all such time he continued to suffer intensely and was greatly incapacitated, and then finally, from the effects of his original injury, which had become more severe and malignant, be became wholly unable to perform any labor of any kind, and was confined to his home for treatment, and likewise the finding which shows that the injury caused neuritis.

If the performance of such labor under the conditions shown destroys or so modifies the findings, which show total and continuous disability due solely to appellee's injury, for the requisite period of time, that under his

Where a party is shown to be in fact totally disabled for the entire period for which compensation is sought, it cannot be held as a matter of law that he was not disabled because during a portion of such time he made a good-faith, though ineffectual, effort to perform the duties of his usual employment.

[5] Nor could he be held to be totally disabled because he failed or refused to labor, when he had the opportunity so to do, if in fact he was at the time reasonably able to perform such labor. Pacific Mutual Life Ins. Co. v. Branham, 34 Ind. App. 243-246, 70 N. E. 174; Commercial Travelers' Mutual Accident Ass'n v. Springsteen, 23 Ind. App. 657-662, 55 N. E. 973; Indiana Life, etc., Co. v. Reed, supra; Young v. Travelers' Ins. Co., 80 Me. 244-247, 13 Atl. 896; Hohn v. InterState Casualty Co., 115 Mich. 79, 72 N. W. 1105; Turner v. Fidelity & Casualty Co., 112 Mich. 425, 70 N. W. 898, 38 L. R. A. 529, 67 Am. St. Rep. 428; Lobdill v. Laboring Men's Mut. Aid Ass'n, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542.

[6] In several of the cases above cited it is stated, in substance, that provisions for total

disability similar to those in the policy now under consideration, in all cases of doubt, should be liberally and fairly construed as to give to the insured the indemnity which he contracted to obtain, and at the same time the language employed should be so construed as to serve the purpose of guarding the company against fraud or imposition.

In the case at bar the finding of the court shows that the conclusion reached was consistent both with the idea of providing the indemnity contemplated by the parties when the contract was entered into and of effectually safeguarding the company against fraud or imposition of any kind. Such construction gives effect to the whole contract and effectuates the purpose which the minds of the contracting parties met when the policy was issued by the company and accepted and paid for by the insured.

riods as the premium paid will maintain this policy in force, against the contingencies as hereinafter provided.

"Total Accident Disability.

"A. At the rate of forty dollars per month for the period, not exceeding twenty-four consecutive months, that the assured is totally and continuously from date of accident disabled and prevented from performing every duty pertaining to any business or occupation, as a necesbodily injuries effected through external, viosary result, independent of all other causes, of lent, and accidental means."

The foregoing provisions of the policy are followed by numerous detailed specifications relating to "Partial Accident Disability," "Specific Total Losses," "Double Indemnity," "Illness Indemnity," "Extended Illness Indemnity," and some ten or more other general headings or topics which are followed by detailed specifications and statements in fine print and these are followed by the general heading, "Miscellaneous Provisions," which consist of nine paragraphs, and on the reverse side of the policy appears "Schedule of Warranties," a copy of the application, various stipulations and limitations, and an agreement to pay the premiums as specified in the policy. The provision relied upon by appellant to limit recovery to four weeks is found in clause 2 of "Miscellaneous Provisions," ," which is as above set forth.

The finding not only shows the development of neuritis, but that appellee was totally and continuously disabled up to the time of the trial in June, 1914.

To allow appellee only four weeks' sick benefits, in the face of the finding which clearly shows total disability for over six months, and an actual cessation of labor for most of that time, and for all the time, but for the extraordinary conduct of appellee in a good-faith effort to work while disabled and still suffering from the continuing effects of his injury would require a narrow and technical construction of the policy in favor of appellant, notwithstanding the facts found show that it was in no sense imposed upon by fraud or unfair dealings, and has only been called upon to pay the amount it obligated itself to pay under such conditions as are shown by the findings. Such narrow construction would tend to place a premium on fraud and deception, to discourage fairness 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 resurance companies than the broader and ceived by appellee." more liberal construction which affords sufficient latitude to enable courts in applying the law to particular cases to discriminate between malingerers and those who in fairness and honesty have reasonably and substantially complied with the provisions of insurance contracts like the one under consideration.

[7] But it is also contended in this case that the finding which shows that the injury produced neuritis, from which appellee continuously suffered, and by reason of which he was totally disabled, brings the case squarely within the provisions of clause 2 of "Miscellaneous Provisions" of the policy, and limits the period for which compensation may be allowed to four weeks. Considering only such finding and said clause 2, the contention seems to have merit. But we must consider all the provisions of the policy and all the facts found by the court which bear upon the question of the compensation due appellee. On the face of the policy it is stated

that:

The "American Liability Company insures the person named as assured from the 1st of October, 1910, and for such further pe

After concluding the findings which set forth the injury, the development of neuritis, and the disability of appellee, the court states

the ultimate fact:

This is clear statement that, notwithstanding neuritis developed from the injury, appellee was continuously and totally disabled by the original injury, independent of neuritis or any other cause other than such injury; in other words, the period of total disability for which appellee was allowed compensation was independent of, and not changed or prolonged by, neuritis.

To hold that the development of neuritis would shorten the period of compensation to four weeks under such a state of facts would be to bring the provisions of said clause 2 into conflict with and make them contradictory of the general provisions on the face of the policy which promise compensation for total disability for a period of time not exceeding twenty-four months. The provisions of said clause 2 may apply to cases in which neuritis or other diseases named develop and in which it is not shown that the period of disability for which compensation is allowed was entirely independent of and Such connot prolonged by such disease. struction gives effect to the general provisions for total disability, and also to those

[10] In finding No. 6 the court stated that immediately after his injury appellee was removed to his home in a vehicle, and on the same day a physician was called to the home who treated him for his injury. We find no evidence that he was taken home in a vehicle, but the undisputed evidence shows that he walked home by the help of Mr. Garrison, and that a physician was called who treated him as stated in the finding. 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.