Carabelli v. Mountain States Life Insurance Co.

SPENCE, J.

Plaintiff brought this action upon an insurance policy seeking to recover the sum of $1650 claimed to be due for “confining illness” benefits for 22 months at the rate of $75 per month. Upon a trial by jury, plaintiff had judgment as prayed, from which judgment defendants appeal.

The pertinent provisions of the insurance policy were as follows:

‘ ‘ Confining Illness. The Company will pay at the rate of $75.00 per month "for disability resulting from disease, the

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cause of which originates more than fifteen days after the date of this policy, and which confines the Insured continuously within doors and requires regular visits therein, at least once in every seven days, by a legally qualified physician, provided said disease necessitates total disability and total loss of time and provided that no indemnity will be paid for the first seven days of such disability. ’ ’

“Non-Confining Illness. The Company will pay at the rate of $75.00 per month for the first month, and $37.50 per month for the next two months, for disability resulting from disease, the cause of which originates more than fifteen days after the date of this policy and which does not confine the Insured continuously within doors, but requires regular visits, at least once every seven days, by' a legally qualified physician, provided said disease necessitates total disability and total loss of time, and provided that no indemnity will be paid for the first seven days of such disability, unless such non-confining illness shall immediately follow confining illness, indemnity for which is payable hereunder.”

On April 15,1930, and while said policy was in force, plaintiff suffered a paralytic stroke which confined him to a hospital for a time and thereafter confined him to his home for a further period of time. The insurance company made regular payments of $75 per month to plaintiff until February, 1932, upon the assumption that plaintiff had been confined continuously within doors during all of that period. About the time the last payment was made, plaintiff was seen walking alone and unassisted at a point some distance from his home. An investigator was thereafter sent to plaintiff’s home and when he arrived plaintiff was out. He waited for 20 or 25 minutes and then observed plaintiff walking down the street returning to his home. Some conversation was had on that day concerning plaintiff’s condition and the investigator returned on another day and had a further conversation with plaintiff. The investigator explained the provisions of the policy relating to confining and nonconfining illness and tendered plaintiff a draft for $150 which was claimed by the insurance company to be the full balance due to plaintiff under the terms of the policy relating to nonconfining illness. Plaintiff refused to accept the draft covering the nonconfining illness benefits and thereafter commenced this action seeking to recover benefits under the confining illness clause.