
    National Accident & Health Ins. Co. of Philadelphia v. Mergenov.
    
      (Decided March 6, 1935.)
    
      Messrs. Hutchison & Firestone, for plaintiff in error.
    
      Messrs. Taylor & Taylor, for defendant in error.
   Washburn, J.

In this action George Mergenov, who will be referred to as plaintiff, recovered a judgment against the National Accident & Health Insurance Company of Philadelphia, as indemnity for illness suffered by him while a policy which had been issued to him by said company was in force.

A jury was waived and the cause was submitted to a judge of the Common Pleas Court upon a partial agreed statement of facts and evidence adduced by plaintiff.

It is conceded that the facts are such as entitled the plaintiff to some compensation under the policy, but the parties differ as to the amount thereof, and the company claims that plaintiff has been paid all that is due him under the policy.

Their differences depend for solution largely upon the interpretation. of two schedules contained in the policy when applied to the agreed facts and the facts that are not disputed, the company having offered no evidence.

The two schedules are “H” and “I”, the former of which relates to what is designated “confining illness”, and the latter to what is designated “nonconfining illness”.

The former fixes a rate of compensation per month for not exceeding six months when- the insured is “necessarily, totally and continuously confined within the house and therein visited at least once in each seven days by a legally qualified physician,” and the latter stipulates a rate one-half as large for not exceeding four weeks after one week’s confinement when the insured is “necessarily, totally and continuously disabled from performing each and every duty pertaining to his business or occupation and requires and receives at least once in each seven days the attention of a legally qualified physician, but is not confined within the house.”

The insured was taken ill on the seventh day of May, 1931, and was totally and completely disabled for a time long in excess of the times mentioned in either of said schedules, and during all of said time he suffered from a serious ailment, and his condition was such that he was necessarily confined to his home; but there were treatments that it was necessary that he should have which it was impossible for one of his means to have in his home, and after May 28,1931, his physician did not attend him in his home.

Although the insured had a temperature of at least 101, his physician advised that he be taken to an office for the taking of an X-ray, and that he be brought to his office for treatment by means of appliances and with the aid of conveniences and assistants which were available only in hospitals or in the offices of some doctors; and thereafter, during the period mentioned in said schedules, he was taken once a week or oftener to the doctor’s office by means of automobile and elevator, the doctor “using the utmost care not to detain him too long, and not to make it any more trying on him than was absolutely necessary.” Before and after each treatment it was necessary for him to rest upon a cot in the doctor’s office.

Except for such trips to the doctor’s office for treatment plaintiff remained in his house, and it was necessary that he should do so, until long after the time mentioned in said schedules.

The company claimed that all that was due plaintiff under the policy was $86.42; and, $75 having been paid on account, the company tendered a check for $11.42 and demanded full release; but that offer was refused and this suit was begun.

There can be no doubt that plaintiff’s condition was a “confining illness” within the meaning of schedule “H”, unless the fact that he was not visited in Ms house by a' physician “at least once in each seven days” after the first three weeks of his illness requires a contrary finding.

We are of the opinion that the situation shown by the facts in this case is not such as to require such contrary' finding.

The important element of difference between the two schedules is that in “H” the insured’s illness is such that he is confined to the house, and in “I” he is not confined within the house; in “IT” the language that the insured shall be visited by the physician in the house is appropriate to a confining illness, and the language in “I” that the assured requires and shall receive the attention of a physician is appropriate to a nonconfining illness, but in neither schedule was such language intended to describe a controlling element in the determination of whether an illness was a confining or a nonconfining illness.

The language concerning medical treatment in the house is more in the nature of a reference to an evidentiary fact bearing upon the character of the illness, than a conclusive test of liability.

The important requirement is that the insured shall need and receive the services of a physician “at least once'in each seven days”; not the place where he receives such services. In other words the promise to pay depends upon the character of the illness, whether confining or nonconfining, rather than on the place where the physician treats the insured.

One is continuously confined to the house although there be imperative removals, as in the case of a transfer to a hospital and back again. What is required is a degree of sickness • rather than the literal fact of staying in the house under all circumstances. No prospective purchaser of insurance could be expected to place any other construction upon the language used, and any other construction would be an unnatural one.

It is hardly conceivable that the officers of the insurance company who used said language in preparing this contract intended that if the insured were bedridden and it was necessary in order to save his life to take him to a hospital, and there treat him, he should be paid only one-half as much and for a shorter time than if the physician had treated him in his house.

It is of no assistance to say that “insurance policies, like all other written contracts, mean what they say and all they say.” If a strict application of such language be made, then under the wording of this policy the insured who had a “house” to be taken to when ill would receive much more than the insured whose only place of habitation was a hotel, and anyone would know that no such result was intended, even by the officers of the insurance company.

If they did so intend, then this case furnishes a justification for the application of the rule that, in case of doubt or ambiguity, such policies of insurance should be construed strictly against the company and liberally in favor of the insured, who had no voice in the wording of the policy.

We are aware that there is respectable authority holding that very similar policy provisions are not ambiguous, but on the contrary are plain, and that their meaning, is unmistakable, and that therefore they should be enforced as written; but we prefer the reasoning of the cases where very similar policy provisions have been held to be of doubtful meaning when applied to situations similar to that shown by the facts in the instant case, and wherein recoveries for confining illness have been approved. Stewart v. Continental Casualty Co., 141 Wash., 213, 250 P., 1084, 49 A. L. R., 960, and cases cited in note at page 965; Garvin v. Union Mutual Casualty Co., 207 Iowa, 977, 222 N. W., 25, 61 A. L. R., 633; Paul v. National Accident Society, 249 Ill. App., 302; Fuzessery v. American Benefit Casualty Insurance Co., 256 Ill. App., 476; Federal Surety Co. v. Waite (Tex. Civ. App.), 297 S. W., 312.

“Our examination of the authorities convinces us that confinement within the four walls of one’s home every moment of the period for which indemnity is sought is unnecessary. Before a recovery can be had under a clause similar to that under consideration, the insured must be afflicted with an illness which men commonly regard as a confining illness. When the illness is sufficiently severe to confine the insured to his home for substantially all of the time, an occasional excursion outside to secure medical attention or to secure the healing effect of sunshine will not defeat recovery.” Purcell v. Washington Fidelity National Insurance Co., 146 Ore., 475, 498, 30 P. (2d), 742.

The Supreme Court of Ohio is in accord with the principle that is established by the great weight of authority on this subject. In the case of American Assurance Co. v. Dickson, 24 C. D., 313, 15 C. C. (N. S.), 228, the Circuit Court, having before it an insurance policy which provided indemnity in case of total disability, and which provided that to be totally disabled the insured must be ‘1 strictly, necessarily and continuously confined within the house and there regularly and personally attended by a legally qualified physician,” held that the insured was not barred from recovery where, under the advice of his physician, he went out for air and to his physician’s office for treat ment; and upon review of that case the Supreme Court declared in its journal entry that it appeared that the insured was totally disabled and prevented from performing any duty pertaining to his business or occupation, and “strictly necessarily and continuously confined within the house except when ordered and directed by the legally qualified physician regularly and personally attending him to go out into the open air as a part of the treatment prescribed by said physician for the cure of the defendant in error, and for no other purpose,” and the judgment was affirmed. American Assurance Co. v. Dickson, 91 Ohio St., 380.

On the question under discussion we conclude that the trial court reached the correct conclusion.

As to the questions in reference to the pleadings and proof of loss, we find no prejudicial error in the record.

Judgment affirmed.

Funic, P. J., and Stevens, J., concur.  