Order of United Commercial Travelers of America v. Barnes

80 P. 1020, 72 Kan. 293, 1905 Kan. LEXIS 343

• Court: Supreme Court of Kansas
• Decided: May 6, 1905
• Docket: No. 14,145
• Status: Published

Opinions

The opinion of the court was delivered by

* William R. Smith, J.:

The contract for indemnity, entered into between the Order of United Commercial Travelers and the insured, provided that the former should be liable only in the event that a member sustained injury by violent and accidental means which should, “independently of all other causes, immediately, wholly and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation.” It is quite plain that the evidence did not satisfy these conditions of the agreement. It may be conceded that the circumstances tended to prove that the injury to Mr. Barnes was caused by the swallowing of a pin on July 23, 1902, but there is no showing that between that time and August 4 he did not pursue his vocation in the usual manner, except a statement by the witness Bucher that for a day or two he was absent from the store and was not feeling well. Mrs. Barnes’s testimony was not based on her personal knowledge of plaintiff’s condition between July 23 and August 4. She did not remember of having seen him between those dates. That plaintiff was at his place of business nearly every day assisting in buying goods, looking over the purcháses, and selling some goods for future delivery, was testified to by his brother, a witness presumably favorable to plaintiff’s side of the case.

There was testimony tending to show that plaintiff was not feeling well, or was “under the weather,” a part of this time, but to say that he was wholly and continuously disabled and prevented from prosecuting any and every kind of business pertaining to his occupation would be an unwarranted perversion of the evidence and a contradiction of the solemn assertion made by plaintiff himself before the action was brought. In his verified claim made to the order he stated that his total disability from the prosecution of any and every part of his business began on August 4. The court does not assert, however, that this statement concludes the rights of plaintiff, but regards it as evidentiary only. (Brendon v. Traders & Travelers’ Acc. Co., 84 Hun, App. Div. 530, 82 N. Y. Supp. 860.) Not having testified in his own behalf, we are at liberty to presume that, had he done so, plaintiff would have adhered to his sworn statements made to defendant to obtain payment of his claim. Furthermore, the case seems to have been tried by counsel representing Mr. Barnes on the theory that it was immaterial whether total disability occurred before August 4. In the examination of the witness Nathaniel Barnes, counsel for defendant inquired of one of the plaintiff’s attorneys: “Do you contend that he was not sick before August 4?” The other replied: “Why, I don’t know anything about it, and I care less.”

In Smith v. Select Friends, 62 Kan. 75, 61 Pac. 416, 53 L. R. A. 934, the court had before it a case where a member of a fraternal order was entitled to payment of a benefit for disability by accident when he became “totally and permanently disabled from following his usual or regular business, occupation, or profession.” By an accidental discharge of a gun the insured, who was a druggist, lost his left arm, which was amputated at the shoulder-joint. It was held that no indemnity could be recovered. It was said:

“He cannot recover under the contract of insurance which fixed the right of one party and the liability of the other unless he has sustained a total disability— that is, a complete disability to carry on the business of a druggist.” (Page 78.)

Among the cases cited with approval in Smith v. Select Friends, 62 Kan. 75, are Saveland v. The Fidelity & Casualty Co. of New York, 67 Wis. 174, 30 N. W. 237, 58 Am. Rep. 863, and Lyon v. The Railway Passenger Assurance Co., 46 Iowa, 631. The Wisconsin case notes the distinction between conditions in the agreement providing for the payment of indemnity where the person is immediately and wholly disabled and prevented from the prosecution of any and every kind of business pertaining to his occupation, as in the case at bar, and those contracts for indemnity requiring payment when the insured shall be totally dis1 abled from following his usual business or pursuits. The scope of the latter provision was before the court in Hooper v. Accidental Death Insurance Co., 5 H. & N. (Eng.) 545, 557, a case relied on by defendant in error, where it was said:

“It appears to us they intended that when the insured was wholly incapable of performing a very considerable part of his usual business he should receive a compensation in respect of that disablement.”

Such a construction of the contract in the case before this court would ignore the express words employed by the parties, and make a new contract for them, in which partial disability would suffice to provide indemnity to a person who was insured against injury which should wholly and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation. (McKinley v. Insurance Co., 106 Iowa, 81, 75 N. W. 670; Knapp v. Preferred Mut. Accident Assn., 53 Hun, 84, 6 N. Y. Supp. 57; Fidelity and Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326; Bylow v. Union Casualty & Surety Co., 72 Vt. 325, 47 Atl. 1066.) The court does not mean to express, however, the opinion that a person holding a contract of indemnity for injury by accident like the one before us could not perform, after his hurt, some small part of his business affairs, such as giving thought to the state or progress of his business and advising others in respect thereto, or even dictating a letter on a matter within his knowledge which might be beneficial to his material interests. To hold otherwise would be to say that complete mental and physical paralysis must ensue from the accident before an indemnifying company would be liable.

We would also hesitate to decide that although the insured person was disabled wholly, in the opinion of medical experts, from transacting any part of his business by reason of the danger to life which might result, yet, if by a strenuous exercise of will power he should overcome his physical infirmities long enough to do something in a spasmodic way toward the prosecution of his ordinary trade, business, or profession, he would forfeit the indemnity contracted for under an agreement like that.in the present case. (Brendon v. Traders & Travelers’ Acc. Co., 84 Hun, App. Div. 530.) In the case of Lobdill v. Laboring Men’s Mutual Aid Assn., 69 Minn. 14, 17, 71 N. W. 696, 697, 38 L. R. A. 537, 65 Am. St. Rep. 542, it was said:

“But the mere fact that he might be able, with due regard to his health, to occasionally perform some single and trivial act connected with some kind of business pertaining to his occupation as a merchant would not render his disability partial instead of total, provided he was unable, substantially or to some material extent, to transact any kind of business pertaining to such occupation. To illustrate this proposition by reference to the evidence in this case, it appears, as we shall assume, that on one or two occasions where the plaintiff went into his store when down town for other purposes he handed out some small article to a customer, and took the change for it. This would not necessarily prove that he was able to attend to the business of waiting on customers, and that he was not ‘wholly disabled’ within the meaning of the policy. He might be able, on temporary visits to the store, occasionally to perform a trifling act of this nature, and yet be substantially and essentially unable to transact any kind of business pertaining to his occupation of merchant.”

There is a hopeless confusion in the decided cases respecting the question under discussion. They are collected in a note to the case of Turner v. Fidelity & Casualty Co., 112 Mich. 425, 70 N. W. 898, 67 Am. St. Rep. 428, found in volume 38 of the Lawyers’ Reports, Annotated, page 529, and again by a writer in volume 35 of the Central Law Journal, page 150. There being a failure of proof showing total disability before August 4, 1902, the answer of the jury to special question No. 6 (set out in the statement) was without support in the evidence.

The only other question which we deem necessary to decide relates to the correctness of the ninth instruction given to the jury. It reads:

“The term ‘immediately,’ as used in these instructions, means within a reasonable time, taking into consideration all the facts and circumstances as disclosed by the evidence, and does not mean at once, or forthwith, at all events, leaving out of consideration such .circumstances as disclosed by the evidence which tend to give a reasonable excuse for reasonable delay.”

In none of the cases referred to by counsel has the word “immediately” been held to be synonymous with “instantly” or “without delay.” Such a definition would deprive a beneficiary of all rights under an indemnity contract like the present, unless the hurt or prime cause of the injury were followed by instantaneous disablement. In the case of an accidental taking of poison into the stomach time must be allowed for the deadly substance to affect the human system, and such interim as the processes of nature consume in bringing the person poisoned to a state of disability must be excluded in determining the meaning of the word “immediately.” Two persons might receive similar cuts from a knife. One of them might not suffer an injury sufficiently serious to interfere in any degree with his usual business or professional pursuits. The other, while not affected at first, might by reason of an enfeebled physical condition be attacked within a week by blood-poisoning which would wholly prevent him from transacting any kind of business. The court is not prepared to say that in the latter case no recovery of indemnity could be had under a policy like that held by Mr. Barnes.

While the word “immediately,” in the connection used,'is an adverb of time, yet the period within which nature acts to work a total disability from an injury must vary in different persons. In the supposed case of blood-poisoning, if counsel for plaintiff in error is right, no recovery could be had under the accident policy in question because nature was too slow in her operations — because the consequence did not follow the known cause with sufficient celerity. To follow literally the words of the contract, if there Was any interim between the hurt and the total disability, be it ten minutes, half an hour, or two hours, there could be no recovery of indemnity.

It has been adjudged that the word “immediately” in such contracts of indemnity cannot mean “within a reasonable time,” for the latter phrase is referable only to an act done by human agency, in exercise of the will. (Williams v. Accident Association, 91 Ga. 698, 17 S. E. 982.) The use of the phrase “within a reasonable time” in the instruction under discussion is somewhat confusing as repeated in the closing paragraph, and its use at all in such cases widens the latitude of the jury’s investigation and brings forward a doubt whether the terms of the policy will admit of the employment of the words without changing the contract of the parties.

In Williams v. Accident Association, 91 Ga. 698, the court concluded that accident-insurance companies put into their policies the condition that the injury must be immediate and total to guard against the hazard of uncertain litigation to determine whether a disability occurring after the hurt was attributable to it. Of course, the disability must not flow from any other cause than the original injury. If it does, there is no liability. If the conditions of the contract can be extended so that the word “immediately” does not mean “instantaneously,” “at once,” and “without delay” (as all courts agree), then a greater stretch of the conditions cannot be said to be unreasonable in allowing for the period that nature halts before inflicting penalties for her violated laws. In such cases the disability is immediate, within the meaning of the policy.

The judgment of the court below is reversed and a new trial granted.

All the Justices concurring. (82 Pac. 1099.) SYLLABUS BY THE COURT. 1. Practice, Supreme Court — Accident Insurance — Verdict and Evidence. Some expressions in the former opinion in this case are modified, and the rule of construction of the terms “total disability” and “immediately” announced therein, being applied to the policy of insurance and the facts in evidence, held, that this court cannot say that the evidence did not satisfy the conditions of the policy, or that the finding by the jury that the insured was wholly and continuously disabled from attending to every kind of business pertaining to his occupation after July 23 was not sustained by the evidence. 2. Practice, District Court — Continuance. Where depositions are suppressed upon the ground that when received by the clerk through the mails the envelope enclosing them was found torn open, it is error for the court to refuse an application for a continuance, made immediately thereafter, which complies with the provisions of section 317 of the code of civil procedure (Gen. Stat. 1901, §4765), it appearing that the defective condition in which the depositions were received was not caused by any fault or neglect of the party taking the same. 3. - Accident Insurance — Proof of Loss — Instruction. Proofs of loss in an action upon an accident-insurance policy are admissible to prove compliance with the conditions of the policy, but for no other purpose, and it is error to refuse an instruction limiting the scope and effect of such testimony.

Resigned July 1, 1905, and succeeded on that date by the Honorable Silas W. Router, who was appointed by Governor Edward W. Hoch.