
    Earl A. SEGUIN, Plaintiff-Appellee, v. CONTINENTAL SERVICE LIFE & HEALTH INSURANCE CO., Defendant-Appellant.
    Nos. 3952, 4089.
    Court of Appeal of Louisiana. First Circuit.
    April 22, 1955.
    On Rehearing Nov. 22, 1955.
    Second Petition for Rehearing Denied Dec. 13, 1955.
    Writ of Certiorari Granted Jan. 16, 1956.
    Huckabay, Seale, Kelton & Hayes, Alex W. Wall, Baton Rouge, for appellant.
    Cadwallader & Dameron, Baton Rouge, for appellee.
   TATE, Judge.

This suit sought recovery of hospital, surgical and medical expenses "(and also penalties and attorney’s fees) from the defendant, which has assumed all accounts and liabilities under a health and accident policy issued plaintiff by Louisiana Physicians Service, Inc.

Defendant has suspensively appealed from the District Court’s award to plaintiff of policy benefits of $489.97, plus penalties in like amount and $200 attorney’s fees under LSA-R.S. 22:657.

On October IS, 1952, Louisiana Physicians Service, Inc. issued an insurance .policy to plaintiff which provided for payment of hospital and medical expenses in the event of illness or accident.

On June 10, 1953, while the policy was in full force and effect, the plaintiff developed a condition which was diagnosed as “diaphragmatic hernia”. On June 29, 1953, surgery was performed upon the plaintiff and he remained in the hospital until July 7, 1953. His resulting surgical and hospital expenses were $489.97.

There, are no disputed . issues of fact. The only issue, is whether an .exclusion clause contained in . the policy issued i.s applicable to the type of disability suffered by the plaintiff.

Article .4 of the policy provides:

“Article’ IV'. — Waitng Periods:
“Twelve (12) consecutive months of continuous membership under this certificate is required1 before L.P.S. will assume liability for payment of surgery or medical services, or hospital care for pre-existing conditions; tonsils, adenoids, hemorrhoids, and hernia.”

Under this clause the defendant maintains it is not liable, since the condition suffered by plaintiff developed only eight months after the policy was issued or within the year’s waiting period excluding liability in cases of “hernia”.

Plaintiff-appellee urges that the word “hernia” as used in the exclusion clause should be given its ordinary and usual meaning as commonly used and thus would include only those conditions known as “ruptures” resulting from some noticeable protrusions through the abdominal wall, and not the comparatively rare chest condition known as “diaphragmatic hernia.”

The testimony of four physicians and surgeons was taken.

The surgeon who operated on plaintiff testified on behalf of plaintiff that the operation was for a “diaphragmatic hernia”.

The herniation consisted of a projection of the stomach into the thoracic cavity through the opening in the diaphragm normally occupied by the esophagus. In this particular case, the said opening was large enough to permit the stomach to enter into the mentioned cavity. He further testified that in its customary or usual sense “hernia” means a protrusion from' the abdomen through an abnormal opening in the abdominal wall, and that a “diaphragmatic hernia” does not pass through the abdominal wall since the diaphragm is not a part of this wall. This witness, however, did not deny that according to technical medical definition a “diaphragmatic hernia” is indeed a true “hernia”.

The medical director for the defendant Company admitted that when the usual layman spoke of “hernia”, he thought of the abdomen as being affected as most “hemi-ae” occurred in that area. However, he stated that a “diaphragmatic hernia” was one of the type of “hemiae” well established and recognized and properly designated as “hernia” by medical authorities, being any protrusion of an underlying tissue through a weakness or defect in an-overlying tissue. Two other medical experts called by the defendant testified that while the ordinary laymen’s conception of “hernia” would be limited to an objective-protrusion through the wall of the abdomen, yet the type of disability suffered by plaintiff was a true “hernia” although rare in occurrence as compared to ordinary “hernia” or “rupture”. They further stated that while the diaphragm was not usually regarded as part of the abdominal wall, yet logically speaking it was the top wall of the abdominal cavity.

As stated by the District Court in its. able opinion,

“Common sense impels us to believe that an ordinary person afflicted with a diaphragmatic hernia which has no visible symptoms and which produces pain in the chest would never feel or consider that he was suffering from a hernia, which is ordinarily considered-. to be a rupture producing externally visible symptoms and usually produces pain in the lower abdomen.”

The District Court concluded that the word "hernia” is to be judicially construed in its ordinary common sense and not in its technical medical sense; and that when so construed, the term does not include the “diaphragmatic hernia”. We feel this conclusion of the trial court is ■correct. The testimony indicates that a ruptured intervertebral disc (hernia of the •nucleus pulposus) is also technically speaking a “hernia”, that there are cerebral hernias (protrusions through a fractured skull), and hernias of the lung and of the ■eye, etc. It would seem that since a contract is to be interpreted according to the intent of the parties, Article 1945, LSA-Civil Code, the words used in the contract are to be interpreted in the ordinary and general sense, rather than in any specialized ■or extremely technical meaning.

While this is a case of first, impression in Louisiana, in Pendell v. Westland Life Ins. Co., 95 Cal.App.2d 766, 214 P.2d 392, the California District Court held that the word “hernia” used in an accident policy was to be construed in its populár sense and should be taken as ■ an averagé person with usual and ordinary intelligence would understand' it, rather than in its technical or scientific sense, in rejecting the company’s contention-that a clause .restricting benefits in the case , of “hernias” applied as against a claimant or policyholdr ■er suffering . with .an “esophageal hiatus •diaphragmatic hernia”." • .Similarly, the ■Oklahoma Supreme Court refused to construe a diaphragmatic hernia as a/‘hernia” ■under the terms of .its workmen’s compensation statute which limited “hernia” recoveries to compensation for fourteen weeks and the cost of an operation, Steelman v. Justice, 204 Okl. 117, 227 P.2d 647. Other cases similarly refused to restrict, workmen’s compensation benefits to the more limited recoveries permitted for what are commonly known as “hernias” when claimants suffered from conditions, which (as an the present) were technically according to medical definition “hernias”, but did not fall within the ordinary and popular meaning of the word hernias, see Pollock v. Clairton School District, 100 Pa.Super. 333; Royal Indemnity Company v. Jones, Tex.Civ.App., 201 S.W.2d 129; Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137. See also 39 C.J.S., Verbo, Hernia, p. 896.

Furthermore, should the word “hernia” in the restrictive clause of the policy in question be regarded as ambiguous, then it must be interpreted against those who have prepared the contract, namely the insurer-defendant: Article 1957, LSA-Civil Code. See Powell v. Liberty Industrial Life Ins. Co., 197 La. 894, 2 So.2d 638; Lewis v. Liberty Industrial Life Ins. Co., 185 La. 589, 170 So. 4, 107 A.L.R. 286; as examples of the settled jurisprudence that ambiguous language in an insurance policy should be given the interpretation most favorable to the insured, these cases holding that a clause in an insurance policy exempting or limiting-liability should be strictly construed against the insurer, in the interpretation of policies of health and accident insurance.

The District Court also: awarded statutory penalties of 100 per cent of the benefits due under, the'terms ,of the policy, together with attorney’s fees, under LSA-R.S. 22:657, due to. the failure of defend-, ant. herein to pay the contractual- benefits within 30 days from written notice and proof of claim. While initially this Court was of divided opinón; düe-to the arbitrary refusal of defendant’s -claims manager (without .either legal or medical .consultation) to at least bring to the attention of Company counsel legal citations of authorities from other States offered by plaintiff’s attorney indicating liability; after thorough discussion, we have decided that since penalty provisions are strictly construed, and since the question involved was res novo in Louisiana, it may not have been unreasonable or arbitrary on the part of defendant to litigate the question even had the claim’s manager sought medical and legal advice. We will therefore in this instance not award the penalties sought against the defendant insurer herein.

For the above and foregoing reasons, the judgment of the District Court herein is amended insofar as it awarded plaintiff the penalties and attorney’s fees under LSA-R.S. 22:657, demand for which is dismissed; and as thus amended, it is affirmed in all other respects, including its award of $489.97, together with interest and court costs.

Amended and affirmed.

On Rehearing.

LOTTINGER, Judge.

This suit was instituted in the Eighteenth Judicial District Court, Parish of West Baton Rouge, Louisiana, where the Court awarded judgment in favor of petitioner. On recent appeal to this Court, we affirmed the judgment of the Lower Court, our opinion in said matter not yet having been reported. Defendant has asked for a rehearing, which has been granted.

Briefly, the facts show that defendant issued petitioner a Surgical, Medical and Hospital Insurance Policy which was on October 15, 1952. On June 10, 1953, while the policy was in force, the petitioner developed a “Diaphragmatic hernia” which required surgery. The petitioner applied for payment of benefits under the policy, but was refused because of the following provision in the policy:

“Article IV. — Waiting Periods:
“Twelve (12) consecutive months of continuous membership under this certificate is required before L.P.S. will assume liability for payment of surgery or medical services, or hospital care for pre-existing conditions, tonsils, adenoids, hemorrhoids, and hernia.”

The policy was actually written by Louisiana Physicians Service, Inc., but the defendant has assumed all liability under the said policy.

Four doctors testified either on trial below or by depositions. Three of the said doctors stated that a diaphragmatic hernia was a protrusion through the upper wall of the abdomen, and such was a true hernia. One of the doctors testifying for petitioner testified that diaphragmatic hernia was not one of the types of hernias which passes, through a part of the abdominal wall, however, the evidence shows that his testimony-only considered the front of the abdomen, as the abdominal wall. All of the doctors, testified that the most common hernia was-the type which protruded through the front,, or anterior, abdominal wall, however, in medical terminology, a diaphragmatic hernia, which protruded through the upper-wall was a true hernia. The medical experts agreed that the layman’s common conception of the term hernia was a protrusion, through the front abdominal wall.

Our original opinion was based on. Article 1957 of the LSA-Civil Code, together with certain decisions of the Courts of other jurisdictions. Article 1957 of the-LSA-Civil Code provides as follows:

“In a doubtful case the agreement is interpreted against him who has contracted the obligation.”

After reconsidering the matter, it is our-opinion that the provisions of Article 1957' would apply to an ordinary ambiguous, contract, however, we do- not believe that such would apply to the present case as. there is no such ambiguity present.

The policy under consideration must, by-its nature, contain many technical terms.. In fact the actual policy which was filed in-evidence contains many words and phrases, which would be of no meaning whatsoever to the layman. It is obvious that said policy-was written by persons well versed in medical terms, and who might be considered experts in that field.

The only question before us is the interpretation of the medical term “hernia,” and1 whether said term includes “diaphragmatic-hernia.” The medical testimony in the record shows that “diaphragmatic hernia” is a> true hernia.

Article 15 of the LSA-Civil Code provides :

“Art or technical terms — interpretation — Terms of art or technical terms and phrases, are to be interpreted according to their received meaning and acceptation with the learned in the art, trade ■ or profession to which they refer.”

Article 1947 of the LSA-Civil Code provides:

“Terms of art — technical phrases— construction — -Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong.”

Now there is no question that the word “hernia” is a technical medical phrase, and for a true and correct definition of the term we must refer to those who are experts in the medical profession. Such men, who testified in this case, were of the opinion that the term “hernia” includes several conditions, or ailments, of which diaphragmatic hernia is one. In Maryland Casualty Co. v. New Orleans Cotton Seed Oil & Mfg. Co., 3 Orleans App. 285, the Court ■stated:

“Words occurring in a contract are to be construed in their ordinary, usual and popular sense, unless they have been given a contrary legal construction, or have acquired a distinct commercial meaning by usage or are peculiar to some art, trade, or science and have thereby acquired a technical meaning, or unless it is apparent from the context that distinct and particular meaning was intended.”’

We feel that the term “hernia” is of such a nature as to bring it within the provisions of Articles 15 and 1947 of the LSA-Civil Code, and that a true definition of the term must be given by members of the medical profession. According to the testimony of the distinguished doctors and the, provisions of said Articles 15 and 1947, we therefore hold that “diaphragmatic hernia” is a true hernia and was excluded from coverage under the policy for the first year.

Furthermore it appears to us that if the framers of this contract had intended to exclude from coverage, for the first year, only an inguinal hernia, which is the most frequent type, they would have so stated. All to the contrary however they used a very comprehensive term when they used the word “hernia” in said exclusion as that term would be inclusive of many types of hernias such as inguinal hernia, femoral hernia, umbilical hernia, epigastric hernia and diaphragmatic hernia.

For the reasons herein assigned, the judgment rendered by us in this matter is annulled, and the judgment rendered by the Lower Court is reversed, and there is hereby entered judgment in favor of defendant and against petitioner, dismissing petitioner’s demand. All costs are to be paid by petitioner.

Judgment reversed.

TATE, Judge

(dissenting).

I regretfully differ from my learned brethren, and I adhere to the views previously expressed in the original opinion of this Court herein.

In my opinion, interpreting this health and accident insurance company’s policy according to the technical definitions of medical men rather than by the ordinary meaning of the terms employed, is fundamentally unrealistic and incorrect. It is equivalent to holding that the meaning of this contract is to be determined by conditions printed in microscopic type, invisible to the eyes of the laymen (agent selling, and policyholder purchasing) who actually negotiated this contract. The medical testimony herein, and all previous reported court decisions concerning the term, agree that the laymen when he speaks of a “hernia” refers to the inguinal hernia or rupture of the lower abdomen, and does not conceive of it as applying to the chest pain known as a “diaphragmatic hernia” from which the present plaintiff was suffering, or to a skull fracture (which technically may be a cerebral hernia) or to a ruptured intervertebral disc (which is technically a hernia of the nucleus pulposus); see cases from other jurisdictions cited in original opinion; see 19 Words and Phrases, p. 410, Hernia and especially Pocket Part thereto; see 12 Words and Phrases, p. 553, Diaphragmatic Hernia; see 15 Words and Phrases, Pocket Part,' Esophageal Hiatus Diaphragmatic Hernia.

The identical question of whether the technical medical definition (under Article 1947, LSA-C.C.), rather than the “common and usual” meaning thereof, Article 1946, LSA-C.C., is to he applied in interpretation of a health and accident and medical payment policy has already been litigated and decided adversely to the insurer.

In Miley v. Fireside Mutual Ins. Co., La.App., 200 So. 505, 507, the late Mr. Justice LeBlanc as the organ of this Court enunciated the principle that the popular and ordinary meaning of the terms used in a health and accident policy should be adopted in construing said policy, rather, than the medical and scientific meaning thereof. In this case, the policy provided benefits for what it denoted , as “complete fractures”. Although the insured sustained what was medically an “incomplete fracture”’, this Court allowed recovery on the basis of the intention of the parties according to the common and ordinary meaning of the term.

As stated there, if the rule followed by the majority herein were adopted,

“for the meaning of that term, as we have shown, it becomes necessary for one to address himself to a person trained in the science of medicine and more particularly, we might add, to one engaged in some special branch of that science. We do not believe that such an idea enters into the mind of the ordinary layman when he contracts with an insurance company for a policy of insurance containing such a provision, nor do we think that the law contemplates such an understanding or agreement on his part.”

Similarly, in Beard v. Peoples Industrial Life Ins. Co., La.App., 5 So.2d 340, 341, Justice Hamiter as organ of the Second Circuit adopted a similar rule in allowing full 26 weeks disability recovery for a sacroiliac “sprain”, despite a policy provision which limited recovery for “sprains” to 2-weeks.

In Lewis v. Liberty Industrial Life Ins. Co., 185 La. 589, 170 So. 4, 107 A.L.R. 286, our Supreme Court reversed the Orleans Court which as the Supreme Court stated had adapted a “technical” construction of the terms in a policy; the Supreme Court adapted a construction according to the common, everyday usage of the terms.

Recently, in McKinney v. American Security Life Ins. Co., La.App., 76 So.2d 630, 631, the Second Circuit affirmed a District Court judgment which had refused to strictly construe a health and accident policy according to the precise meaning of the terms involved, and had allowed recovery based on common, everyday usage of the language as determining the intention of the parties.

The principle that technical meanings attach to technical words, Article 1947, LSA-C.C., relied upon by the majority to reach its result on rehearing, is not peculiar to the LSA-Civil Code. It is the rule in the common law States, also, and as noted in the original opinion herein, in every State where the question has been litigated, the exclusionary word “hernia” is interpreted to refer only to what are commonly and ordinarily known as hernias, and not to diaphragmatic hernias or other types of technical hernias.

The following quotations from Corpus Juris Secundum as to the rule, and as to the qualifications thereof, are self-explanatory:

17 C.J.S., Contracts, § 302, p. 720:

“Technical words will be taken in a technical sense, as, for example, legal terms, unless they are clearly used in a different sense. So, where technical words are employed by parties who are obviously unfamiliar with their meaning, they may be construed in such a manner as to effectuate the true intention of the parties.” (Italics ours.)

17 C.J.S., Contracts, § 586, p. 1228:

“The burden of showing that the language of a contract has a technical meaning, and of establishing such meaning, is on the party asserting it, unless the contract is with reference to a particular trade or business in which words and phrases have a technical or peculiar meaning.”

44 C.J.S., Insurance, § 294, p. 1155, with especial reference to health and accident policies:

“A contract of insurance is to be construed according to the sense and meaning of the words or terms which the parties have used in the policy, and, as a general rule, if there is no fraud, concealment, or deception in the issuance of the policy, and the words or terms are clear and unambiguous, they are to be taken and understood in their plain, ordinary, usual, and popular sense, rather than in their technical, philosophical, or scientific sense, as defined or used by lexicographers, scientists, or persons skilled in the niceties of language; or, as otherwise stated, the words or terms should be taken and understood as an average or reasonable person, with usual and ordinary understanding, would construe them when used to express the purpose for which they are employed in the policy.
“The general rule applies in interpreting words or terms employed in a contract or policy of accident insurance, * * *.''

To reach its decision, the majority must decide that the word “hernia” is clear and unambiguous as excluding the type of chest ailment from which petitioner herein suffered ; for if it is ambiguous, it is to be construed against the party who wrote the contract, namely the insurer; Article 1957. That the medical term “hernia”1 is at least ambiguous when used in a legal contract is evidenced, I think, by the fact that every other court in every other reported decision called to our attention faced with the problem presently before this court has construed the term “hernia” according to its ordinary popular meaning, and specifically not according to its technical medical definition ; see cases cited in the original opinion of this court.

So crystal clear in my opinion is the jurisprudence that policies such as these are to be construed to accomplish the purposes thereof in affording protection to the insured against medical expenses because of illness, that the more favorable to the insured of two interpretations is to be adopted in determination of the protection afforded by contract, and that the ordinary and popular rather than the technical meaning of the terms employed, determines the meaning of such policies,. I originally agreed with .the, District Court that penalties for arbitrary refusal to ,pay should be. allowed the insured in view of the unanimous jurisprudence from other States refusing to apply the medical term “hernia” restrictively to exclude protection for ailments such as the present.  