Summary
In Glisson the clauses at issue — clauses containing language functionally identical with, and literally all but identical with, that in our case — had no semicolon or other punctuation mark separating the two disjunctive clauses.
Summary of this case from General Am. Life Ins. Co. v. BarthOpinion
38973.
DECIDED NOVEMBER 9, 1961. REHEARING DENIED DECEMBER 13, 1961.
Action on insurance policy. Savannah City Court. Before Judge Alexander.
Hitch, Miller Beckmann, Joe R. Young, Jr., for plaintiff in error.
Crawford, Leeb Calhoun, John R. Calhoun, contra.
The court did not err in overruling the defendant's general demurrer to the plaintiff's petition.
DECIDED NOVEMBER 9, 1961 — REHEARING DENIED DECEMBER 13, 1961.
Leon T. Glisson, Sr., hereinafter referred to as plaintiff, sued United Benefit Life Insurance Co. of Omaha, Nebraska, hereinafter referred to as defendant. The plaintiff's petition contains allegations: "That on November 10, 1958, the defendant issued to the Railroadmen's Protection Association, Inc., a Group Policy No. G L U G-1424 with a certificate number 282, insuring . . . petitioner for Hospital Expense Benefits and surgical operation expense benefits. . . On the 23rd day of December, 1958 . . . petitioner was injured while working in his employment on the Central of Georgia Railway Company and was . . . hospitalized as a result of his injuries . . . and did . . . remain hospitalized in the Central of Georgia Hospital Savannah, Georgia, as a result of these injuries until the 18th day of February, 1959. . . That as a result of these injuries and being hospitalized . . . petitioner incurred the expense of $757.50 for his hospital care and the expense of $400 for doctor services. That these expenses are covered under the . . . policy and petitioner . . . [is] entitled to have these expenses paid by the defendant. At the time of the . . . injuries petitioner was not covered by Workmen's Compensation or similar legislation. That petitioner . . . complied with all of the provisions of the . . . policy in regards to recovering thereunder and defendant has . . . refused to pay said claim after proper notice and demand . . . made upon said company." A copy of the policy is attached to the petition as an exhibit thereto.
The policy provides: "If a protected person . . . because of accidental bodily injuries . . . shall be confined as a resident patient in a legally constituted hospital and require medical attendance by a legally qualified doctor of medicine, the Company, provided such hospital confinement commences while such protected person . . . is insured under this policy, will pay for the expense actually incurred for such medical attendance during such hospital confinement, but not to exceed one call per day nor to exceed the Maximum Payment Per Call and not to exceed, in the aggregate, the Maximum Medical Benefit for any period of hospital confinement."
The policy also provides: "If a protected person . . . because of accidental bodily injuries or sickness, shall be confined as a resident patient in a legally constituted hospital, the Company, provided such hospital confinement commences while the protected person . . . is insured under this policy, will pay benefits for the expense actually incurred for hospital room and board during the period of hospital confinement, but not to exceed the Daily Benefit per day nor to exceed the Maximum Number of Days Payable for any one period of hospital confinement." The plaintiff is named in the policy as a protected person.
The defendant's general demurrer to the plaintiff's petition was overruled. The defendant appealed, assigning this ruling as error.
Defendant contends that the plaintiff's petition does not state a cause of action because of the following provision of the policy: "The provisions of this policy relating to benefits, other than life insurance benefits, do not cover (a) accidental bodily injuries arising out of or in the course of the employment of the protected person or his dependents or sickness covered by a Workmen's Compensation Act or similar legislation. . ."
The defendant contends that it is not obligated to pay the plaintiff for hospital and medical expenses incurred by him as a result of injuries to his person arising out of or in the course of his employment, regardless of whether such expenses are, or are not, covered by workmen's compensation. In other words, the defendant contends that the phrase "covered by the Workmen's Compensation Act or similar legislation" modifies only the word "sickness." If a provision of an insurance policy is ambiguous or subject to more than one construction, the construction most favorable to the insured will be adopted. John Hancock Mut. Life Ins. Co. v. Frazer, 194 Ga. 201 ( 20 S.E.2d 915); Prudential Ins. Co. v. Chestnut, 8 Ga. App. 246 ( 68 S.E. 952).
In Whitaker v. State, 11 Ga. App. 208 (5) ( 75 S.E. 258), it was held: "The word `or' is generally used as a disjunctive, and to express the notion that the two clauses which it connects are alternative; but this is not always so; it may properly be used to introduce a statement which is an amplification or explanation of a preceding statement."
In many cases the disjunctive "or" is construed to mean "and." Clay v. Central R. Bkg. Co., 84 Ga. 345 ( 10 S.E. 967). See also Everitt v. LaSpeyre, 195 Ga. 377 ( 24 S.E.2d 381).
We are of the opinion that the exclusion clause of the policy above quoted does not relieve the defendant of liability for hospital and medical expenses incurred by the plaintiff as a result of accidental injuries to his person simply because he sustained such injuries while performing duties in the course of his employment, unless he would have a cause of action for such expenses under the Workmen's Compensation Act or similar legislation. The petition affirmatively alleges that the plaintiff was "not covered by workmen's compensation or similar legislation" at the time he suffered the injuries to his person.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.