LaBarge v. United Insurance , 209 Or. 282 ( 1956 )

ROSSMAN, J.

This is an appeal by the defendant, United Insurance Company, from a judgment, based upon a verdict, which the circuit court entered in favor of the plaintiff in the two sums of $1,600 and $500. The subject matter of the action is a policy of accident insurance which names the plaintiff as the insured. The sum of $1,600, which the challenged judgment awarded to the plaintiff, was given as indemnity for a period of disability which the circuit court found was caused by an accident. The other sum, $500, was awarded as an attorney fee.

The policy insured plaintiff

“against loss of life, limb, sight, or time, sustained or commenced while this policy is in force, resulting directly and independently of all other causes from accidental bodily injuries sustained during any term of this policy, hereinafter called such injury, * * *; subject, however, to all the provisions and limitations hereinafter contained.”

and further provided:

“Part Pour—If such injury does not result in any of the above mentioned specific losses but shall wholly and continuously disable the Insured for one day or more, the Company will pay indemnity at the rate of One Hundred ($100.00) Dollars per month, beginning with the first medical treatment during disability so long as the Insured lives and suffers said total loss of time, provided the Insured is under the regular and personal attendance of a licensed physician, surgeon, osteopath or chiropractor, other than the Insured.”

According to the plaintiff’s testimony, he sustained an injury in an accident June 9, 1953, while in the employ of the Lewis Shingle Company, which is located in Wheeler.

By his amended complaint, plaintiff claimed to have been “wholly and continuously” disabled under the terms of the policy from June 13,1953, the date of the first medical treatment for the injury, to October 13, 1954, and sought to recover payments in the amount of $100 per month for that period. The case was tried before a jury which returned a verdict in favor of plaintiff in the two aforementioned amounts of $1,600 and $500.

The evidence reveals that at the time of the accident plaintiff, then 61 years of age, was employed in a shingle mill where his duties required him to transfer blocks of wood, varying in weight from five to fifty pounds, from a conveyor belt to nearby sawyers. On May 31, 1953, he stepped on an oil slick while at the mill and fell on his shoulder. He obtained no medical attention as a result of this fall. On June 9, 1953, he stepped on a block of wood and, as a result, was propelled against the moving carriage of a nearby machine, thereby strildng his right shoulder, which soon became very painful and impaired in usefulness for his normal tasks at the mill. When the pain persisted despite attempts to alleviate it by heat treatments at home, he sought medical attention on June 13, 1953.

Plaintiff did not return to his job thereafter and was treated frequently from that date for the injury to his right shoulder. On June 24, 1953, his condition became worse and symptoms spread to other parts of his body, including the left shoulder. Plaintiff’s physician diagnosed the ailment as rheumatoid arthritis and osteoarthritis.

On October 16, 1953, plaintiff took a job as night watchman at the mill and remained at that job, save for a few days at the end of November, 1953, through the beginning of December, 1953. The pain and impairment of the functioning of the arm persisted throughout that period, and plaintiff could not perform some of his assigned tasks without assistance from fellow employes.

Plaintiff had received payments from the State Industrial Accident Commission for temporary total disability following the accident. These were stopped prior to October 16, 1953, but were reinstated after an appeal by plaintiff and were being paid at the time of trial. Plaintiff also had received approximately eleven weekly payments of $25 each as a result of a compensation application filed with the State Unemployment Commission on December 11,1953.

At the trial, plaintiff’s physician, Dr. Harry G. Beckwith, Jr., testified that plaintiff had been unable to perform any “steady work at gainful employment” since the accident and that he was disabled by rheumatoid arthritis. The physician believed that this condition must have been present prior to the accident, although it had caused no difficulty. He explained that it became active when “triggered off” by the fall.

Defendant presents six assignments of error, but since the first, the alleged error of the court in denying defendant’s motion for nonsuit, encompasses all the points raised in the remainder, that alone will be considered.

Defendant first contends that plaintiff did not sustain his burden of showing a causal connection between the accident of June 9 and the disability. Spicer v. Benefit Association of Railway Employees, 142 Or 574, 17 P2d 1107, 21 P2d 187. This is not the case. The following nncontradicted evidence shows that the jury did not have to resort to guesswork to find that the alleged causal connection was established: (a) Plaintiff was an able-bodied man engaged in earning his living by hard manual labor prior to June 9, 1953. After the incident of that day he worked at that job for only three more days before pain forced bim to desist and consult a physician. He never returned to that job. (b) The only medical expert who gave testimony testified to the causal connection between the accident and the disability, (c) A letter signed by the defendant’s regional claim auditor on November 4, 1953, and addressed to plaintiff, states:

“We agree with Dr. Beckwith on one point and that is, that the incident that occurred on June 9th was undoubtedly the motivating or activating cause of your difficulty.”

Defendant next argues that plaintiff’s proof failed to support his pleadings in three particulars. The first of these is that the complaint alleged only the accident of June 9, whereas the proof showed that two accidents, one of May 31 and the other the aforementioned one of June 9, combined to bring about the disability. It is true that some testimony indicated that the accident of May 31 was a contributing factor, but, in view of the fact that plaintiff suffered no immediate ill effects from his fall of May 31, as he did from the one of June 9, it cannot be said that the jury could not have found that the June 9 accident was the sole factor in bringing about plaintiff’s disability. Even should a contrary view be taken and the proof be considered at variance with the pleadings in this respect, the variance could not be deemed as material. OB.S 16.630 states:

“No variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.”

The fact that the defendant was not misled with respect to the May 31 accident is shown by a letter, dated October 16, 1953, signed by the defendant’s regional claim auditor and addressed to plaintiff, which mentions that accident. Nelson v. Dowgiallo, 73 Or 342, 143 P 924, 143 P 1199; Johnson v. Steele, 154 Or 137, 59 P2d 237.

The second alleged failure of proof is that the accident of June 9 was not proven to be the cause of plaintiff’s disability “independently of all other causes” since plaintiff’s pre-existing arthritic condition operated as an “other cause.” That contention must be resolved adversely to the defendant. Todd v. Occidental Life Insurance Company of California, this day decided by us under a policy of insurance substantially similar to the one involved here, held that it was a question for the jury as to whether or not osteoarthritis, with which the insured in that case was afflicted, was a causal factor in the disability which he suffered after an accident befell him. Plaintiff LaBarge has been disabled by rheumatoid arthritis, which, but for the accidental injury, would not have impaired his ability to work in any manner. In the light of such facts, the determination of the jury that the arthritic condition was not an “other cause” of the disability will not be disturbed. See Williams v. General Accident, Fire & Life Assurance Corp., 144 Kan 755, 62 P2d 856; Langeberg v. Interstate Business Men’s Accident Assn., 57 SD 226, 231 NW 930; Rebenstorf v. Metropolitan Life Insurance Co., 299 Ill App 71, 19 NE2d 420; Scanlan v. Metropolitan Life Insurance Co., 93 F2d 942; National Life & Accident Insurance Co. v. Upchurch, 57 Ga App 399, 195 SE 588; Preston v. Aetna Life Insurance Co., 174 F2d 10, cert. den. 338 US 829; Jones v. General Accident Fire & Life Assurance Corp., 118 Fla 648, 159 So 804.

The third alleged failure of proof concerns the requirement of the policy that insured be “wholly and continuously” disabled. Defendant points to the night watchman’s job undertaken by plaintiff on October 16, 1953, and the substantial sums which he earned while so engaged. That employment and the facts that the State Industrial Accident Commission stopped payments for temporary total disability prior to October 16, 1953, and that plaintiff later applied for and received unemployment compensation payments are said to preclude the jury from finding that plaintiff was “wholly and continuously” disabled from the date of his first visit to Dr. Beckwith.

Fagerlie v. New York Life Insurance Co., 129 Or 485, 278 P 104, presents a statement of the views of this court on the words in issue. Two policies were involved in that case and both provided that insured could recover if he was “wholly disabled by bodily injury or disease” and thereby “permanently and continuously prevented * * * from engaging in any occupation whatsoever for remuneration or profit”. In affirming recovery under both policies, the court said:

“The policies do not contemplate that if the insured is physically able to possibly do some light work, he is not totally disabled, unless such work may be performed in the exercise of common care and prudence: * *

The opinion cited Fitzgerald v. Globe Indemnity Co., 84 Cal App 689, 258 P 458, which states:

“ * * * The ultimate fact to be determined is not what the plaintiff actually did in the way of business duties but what, in the exercise of common care and prudence he was reasonably able to do. Proof of what he did is merely evidence, tending to show his ability to do, just as the opinion of the physicians who testified are evidence to show that his disability was or was not total.”

Dunlap v. Maryland Casualty Co., 203 SC 1, 25 SE2d 881, 14 ALR 1, declared:

“The ‘total disability’ contemplated by an accident policy does not mean, as its literal construction would require, a state of absolute helplessness;

The following illustrate various post-accident activities of the insured which the courts hold do not bar a jury finding that the disability was total and continuous.

In Morgan v. Aetna Life Insurance Co., 157 F2d 527 (CCA 7), the insured, manager of a dairy company, had received a severe injury to his back for which he sought indemnity. For seven months following the injury he went to his office two or three times per week for visits ranging in length from ten minutes to one hour. He received payments from his employer in amounts equivalent to his salary during that period. Under a policy requiring insured to be “wholly and continuously” disabled, he recovered judgment. In affirming, the court pointed to the fact that the post-accident services were inconsequential and added that ‘ ‘insured should not be penalized for having made the effort, by denial of recovery.”

A long series of attempts by insured to stand on his own feet following an accident is presented in Hodgson v. Mutual Benefit Health & Accident Assn., 153 Kan 511, 112 P2d 121. Insured suffered injuries to his foot, knee and spine and sought to recover under the provisions of a policy requiring him to be “wholly and continuously” disabled. Starting six months after the accident and continuing periodically for more than a year thereafter, insured was engaged for periods of time varying from two weeks to ten months as an insurance salesman, grocery store proprietor, business college student, and night watchman. The jury’s finding of total disability was held, however, to be supported by “ample evidence.”

Mann v. Travelers’ Insurance Co., 176 SC 198, 179 SE 796, affirmed recovery under a policy covering injuries “wholly and continuously” disabling the insured, by saying:

“The appellant strenuously contends that the fact that plaintiff undertook to return to work and was able to perform a part of his duties and to draw Ms full salary for a time would preclude bis recovery. The conduct of plaintiff is highly commendable, as he showed that he was doing all he could to minimize the liability of the defendant. If the fact that the insured undertook to do his regular work, even when his final recovery was doubtful, would preclude recovery, it would encourage less scrupulous people to refuse to work so long as they could draw disability compensation.”

In Haraszmczmuk v. Massachusetts Accident Co., 127 Misc 344, 216 NYS 97, the policy covered injuries “continuously, and wholly” disabling insured. Plaintiff was denied recovery for a two-weeks period, during which he had returned to work following an accidental injury, solely because his first claim for that period was filed as an amendment to his complaint at the time of trial. The court, however, said:

“The evidence shows conclusively that the plaintiff, during the two weeks in question, was endeavoring to work at a time when in fact he was physically disabled to do practically any substantial lrind of work, and he did not work at his regular employment. The fact that he endeavored to work during the two weeks in question does not bar him, in my opinion, from coming within the provisions of the policy which provides that the accident shall ‘immediately, continuously, and wholly disable and prevent the insured, from the date of the accident, from performing every duty pertaining to any business or occupation.’ ”

and added:

“When one who has an accident policy, such as the one in question, endeavors honestly and faithfully to work, must such a person be penalized, or must they lean toward the side of being a malingerer to recover?”

The jury must determine whether the facts present a ease of total and continuous disability. A period of post-accident employment is relevant to that determination, but does not foreclose it. When insured bas undertaken sucb employment, bere as a nigbt watchman, it is for tbe jury to say whether, from the evidence, he was reasonably able to do so. A conclusion that he was not is supported by the testimony of plaintiff and his wife that plaintiff was continually in pain during the period of the employment; by the testimony of plaintiff and a fellow employee that plaintiff could not, and did not, perform many of the tasks which the watchman ordinarily was called upon to do; and by the testimony of plaintiff’s physician.

Evidence of the aid provided plaintiff by the various agencies of the State of Oregon was likewise before the jury for its consideration. Its conclusions, in the light of all the evidence, should not be disturbed.

The challenged judgment is affirmed.

McAllister, J., did not participate.