Reed v. Massachusetts Co. , 98 Colo. 257 ( 1936 )

PLAINTIFF in error, herein referred to as the insured, brought this action against defendant in error, designated as the company or insurer, to recover on an accident insurance policy issued to him. The case was tried before a jury, and upon the conclusion of the evidence, on motion of the insurance company, a verdict was directed in its favor by the trial court. The insured assigns error.

The complaint, as amended, alleged the issuance of the policy on July 1, 1931, and that while it was in full force and effect, and on August 3, 1933, the insured sustained an injury which directly and independently of all other causes, through accidental means, immediately, continuously and wholly disabled and prevented him from performing any and every kind of duty pertaining to his occupation; that the disability began November 22, 1933, and was total to the date of the commencement of this action; that the full effects of the injury were not apparent to the insured at the date of its occurrence nor until November 22, following; that insured complied with all conditions and requirements of the policy.

So far as is material to the present inquiry, the pertinent parts of the policy, admitted to have been in full force, are as follows: "If 'such injury' shall immediately, continuously and wholly disable and prevent the Insured from performing any and every kind of duty pertaining to his occupation * * *. Pyogenic infection not caused simultaneously with or through an accidental cut or wound, excepted." "Written notice of injury on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury."

The company set up the following defenses: (1) Disability was not caused directly and independently of all other causes by accidental means; (2) was not due to an infection occurring simultaneously with or through an accidental cut or wound; (3) the injury did not immediately and continuously disable plaintiff; (4) notice was not filed within the time limited; (5) inaccurate answers in insured's application for the policy, rendered the policy void.

The facts, briefly stated are, that the insured was struck on the left hip by an automobile August 3, 1933. This hip had given him some trouble years before and an operation had shortened the leg causing a slight limp. At the time of the accident insured did not consider the injury serious, and except for two or three days immediately following, he attended to his business until November 22, when he noticed pus coming from his leg; whereupon he went to bed and remained there until after the commencement of this suit, performing no duties connected with his occupation. He gave no notice of the injury to the insurer, claiming that he could not conscientiously make a claim until disability resulted, at which time he did notify the company. The disability for which he claims, was total and continuous from November to the following April, when this suit was instituted. The only medical testimony was that of Dr. Enos, who, appearing for insured, stated that he examined Reed November 23rd; that in his opinion the latter's disability was the result of a pyogenic infection occurring simultaneously with and through an accidental wound.

[1] The company, in its motion for directed verdict, and now, seems to rely chiefly on the one issue finally presented, "Did the injuries sustained by the insured immediately and continuously disable him from performing all duties pertaining to his occupation?" More narrowly confined, the issue as argued, is: Was the disability "immediate"? The company, in support of its contention that the disability here claimed was not "immediate and continuous," cites authorities from other states — which seem to be in the majority — to the general effect that under circumstances similar to those in this case, the rule established is, that the disability was not "immediate and continuous" as such terms are judicially defined in those cases. The insured, however, contends that a different rule has been announced in Colorado, inCentral Surety Ins. Corp. v. Industrial Commission,84 Colo. 481, 271 P. 617, wherein this court announced that a reasonable and liberal construction should be given to the words when employed in connection with indemnity claims, and it adopted and approved the ruling in the case of Order of United Commercial Travelers v.Barnes, 72 Kan. 293, 80 P. 1020, 82 P. 1099, using the following language: "It was held that the word `immediately' is not synonymous with `instantly' and `without delay'; that a disability is immediate when it follows directly from an accidental hurt within such time as the processes of nature consume in bringing the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation."

In the Kansas case above cited, the time intervening between the injury and the disability was of brief duration, as is the fact in nearly all of the cases cited by both the insured and the company. In the rule announced by this court, the only limitation of time seems to be such as the processes of nature require. This of course would vary according to the attending circumstances and conditions. The medical testimony herein is to the effect that the alleged injury caused the bone to die, which in turn produced pus that worked itself out to the surface. This process was not completed for a period of approximately one hundred days and the fact of its active presence was unknown to insured. That the injury was the proximate cause of setting this process into operation, is not contradicted in the evidence. The insured had a conscientious reason for not notifying the company of a claim for disability until one existed. If there was any question as to whether the disability was or was not the result of the injury sustained directly and independently of all other causes, that was for the jury to determine, as well as all other phases of the case, upon the evidence submitted under the issues. In the circumstances here presented, the word "immediately" must be construed in its relation to other words and terms of the policy, and it here applies to causation, not to time. To hold that the intervening time, while the processes of nature were developing, broke the continuity of the results of the accident would be equivalent to saying that no time may be allowed for the development of a disability directly traceable to an accident. If nature set up its processes instantly after the accident, as apparently it did in this case, then the disability was the immediate and continuous result of the injury.

[2] The company contends that the use of these words in the policy was to prevent an uncertainty as to the cause of disability, which might occur unless some limit of time was fixed; that other ailments or causes could intervene, producing results which might be attributed to the accident, and that the question of proximate cause might become involved by delay. Conditions, such as are disclosed in this case, if not frequent, do occur, and the company being cognizant of such as natural, normal happenings, could provide for its protection by appropriate words and increased premiums.

The trial court by directing a verdict for the insurance company, apparently was of the opinion that the injury did not "immediately and continuously" disable the insured. Thereby it erroneously invaded the province of the jury.

Judgment reversed and the cause remanded.

MR. JUSTICE BUTLER, MR. JUSTICE BURKE and MR. JUSTICE BOUCK dissent.