
    No. 7806
    Court of Appeal - Parish of Orleans.
    Henry L. Hyman versus Continental Casualty Company
    By Dinkelsplel. J.
   By Dlnkelgplel, J-

Plaintiff uues defendant, being indebted to him in the sum of $l';893.80 with interest from judicial demand under a policy of accident and casualty insurance, insuring him against bodily illness and disease, contracted and begun whilst the rider of said policy was in foroe.

Defendant admits its liability in the sum of $478.47, whibb plaintiff admits to have received, but oontends that there remains due him the sum of $319.00 while he was ill, being- an indemnity for the periods between December 6th, 1916, and April 8th, 1917. The remainder of the claim being made up of attorney's feds claimed in the sum of $300.00 and double the sum of $319.00, which plaintiff alleges he is entitled to as a penalty because of the refusal of defendant to"pay said sum promptly without just and due reasonable grounds as provided for under Act 310 of 1910, at page 537.

Defendant admitting, as stated, its liability in the sum of $478.47, as above* set forth, denies any other liability whatever, claiming that it has oomplied with* all of the terms and conditions of its policy in making this payment, and prays that plaintiff's demand for any additional amount be rejected at his cost.

The judge a *uo rendered judgment in favor of plaintiff for the sum of $219.00 and in-his written reasons for judgment says substantially that plaintiff was entitled,to this sum because he vías convinced that plaintiff was absent and away from his business, unable to attend thereto except to draw checks, and coming to the City only to consult with his physician, which fact, :r has in his opinion, nadé defendant; liable for the 5319.00, but dismissed plaintiff’s cor.code for e.'-tjj and double p f appealed, 'and ? n,«iá^s«'íisa*'hae'pr.-ysd that his ..rJginal demand for end attorney's f-tss be added to the amount tint Court guvs judgment ?cr, to-.vit, Í-31S.00.

In our vies, it the d.’tjraination of the issues herein ..resented and upon an e,<d.sin»ti in of the policy of insurance apon .'.hioh this cl-.i.c is based, and more particularly that ,irt V-i-g ¿art 1 of the health and o. a ration rider of tv-e policy, •..•hi oh reads .-.a follows: "In the event that the insured shall suffer from any bodily eichr.ss-j or ;Ussás3 "’hioh is o-.-r.t racted and began •while this ri-iev is in force, as hsrsioafter provided, this company -.'ill pay for V. ;s of tine which actually and necessarily results from such oiciness ar.d disease as follows: A. for loss of time ••"'urins confinement 3'uid weekly indemnity. B. For Iocs of time luring convalss-esnee one-half of a&id-.weclOy indemnity." "Dose of time during confinement" as herein used means that period of time during which the insured is rendered continuously xxi unable to transact each and every pj.rt of his business duties and is ilso r.soeo warily confined within the house, and has therein g**g a legally qualified physician.

"Loss of time during convalescence" as herein used means that period of tiras during which the i ".sure! is rendered continuously unable to transact each and 3very -art of his business -duties and is under treatment by a legally qualified physician, although not necessarily confined to hi3 house.

An examination of the record convinces us that during the period beginning December 6, 1913, and ending April 9, 1917, plaintiff was not a well man. On the contrary, the evidence shows that during that period he was under the care of a legally qualified-physician whom he consulted two or three times a week, coming from his home, then at Eay St. Louis, "is3issippi, to the (Jity of Mew Orleans simply and 30lely for that purpose. The evidence also proves that while in the City of Hew Orleans, he visited his office, signed checks, conversed with his clerks, customers, transacting partially some business with each of them, and therefore under this evidence, as we view it, plaintiff is clearly unable to claim for', "loss of time during confinement ■KSÁlOBáácXxr-4d«e»«f»tn, as set out by the health rider, for -during that period he was certainly not confined continuously within his'home, nor was he there treated by a legally qualified physician.

Dlfcintiff, therefore, in order to recover for the period in dispute must clearly claim an a convalescent, and this he has done; so susing for one-half of the weekly indemnity which, together with the other portions of the amount due him, he has received.

Ac. e:u-.mination of all the standard authorities in order tc determine i^/’oy any possible chance, plaintiff could he brought within the class of "invalids" during the period for which he makes this claim, for unless he was in s. state of convalescence from December 3, 1916, tc April 5, 1S17, he cannot possibly recover under the terms of the policy sued on.

Convalescents under all the definitions given by the standard dictionaries, including Century, Worcester and v-ebster, covers that period only after an illness and could by no stress of the imagination be made to oover a period of time prior thereto.

The standard Century Dictionary, page 1339: "Convalescence. To grow better after sickness; make progress towards the recovery of health." "The gradual recovery of health and strength after sickness; renewal of health and vigor after sickness or weakness." And so, likewise, without further quotations from Worcester and Webster --.re all the definitions of convalsoenoe in all of the authorities therein quoted.

Thu3 it is seen that in order to be convalescent, one first must be ill, and this was in our opinion clearly the intention of the defendant company when it JtHr&itt itself liable for health insurance during convalescence.

For the reasons assigned, it is ordered, adjudged and deor^ed that 30 far as the Judgment of the"lower court in favor of plaintiff of §319.00, earns is annulled, ■avoided and reversed, but in so far as it dismisses the claim of plaintiff for double the amount of damage», together with-§300.00, additional as attorney's fees, said Judgment is affirmed. Cost of hoth courts to be paid by plaintiff.  