Opinion
No. 34798
Decided December 26, 1956.
Insurance — Indemnity — Policy a contract — Construed favorably to insured — Ambiguity resolved against insurer — "Wholly and continuously disabled" construed — Jury question not presented, when — Motion for judgment non obstante veredicto.
1. An insurance policy prepared by the insurer must be liberally construed in favor of the insured, and, in case of ambiguity, such ambiguity must be resolved against the insurer.
2. An insurance policy constitutes a contract, its terms must be given a reasonable construction, and an ambiguity which is created by giving a strained or unnatural meaning to phrases or by mere casuistry does not constitute an ambiguity requiring construction.
3. Where a contract of insurance provides that the insured shall be paid a weekly indemnity during a period when he is wholly and continuously disabled and prevented from performing every duty pertaining to his occupation, and the insured works for more than 14 months continuously at his occupation as a cone grinder, earning as a piece-worker an average of $75 per week during that period, working not only every working day, with the exception of a few days now and then, but at times doing overtime work and performing his work under an O.K. from his physician, a jury question does not arise as to whether such insured was wholly and continuously disabled and prevented from performing every duty pertaining to his occupation during such period, even though the insured suffered pain while doing his work and received some help from fellow workmen in lifting heavy pans of cones, which help was not against the rules of the employer.
APPEAL from the Court of Appeals for Franklin County.
On October 23, 1952, Paul A. Yeager, appellee herein, hereinafter designated plaintiff, instituted an action against the Pacific Mutual Life Insurance Company, appellant herein, hereinafter designated defendant.
In his amended and supplemental petition, filed November 8, 1954, plaintiff alleges that defendant issued to him a policy of insurance for a term of six months, commencing on July 10, 1948, in consideration of the payment by plaintiff of the premium of $22.70; that such policy was renewed in consideration of renewal of premiums and was in full force and effect on October 19, 1949, and is still in full force and effect; that by and under the terms of such policy defendant insured plaintiff against loss resulting directly, and independently of all other causes, from bodily injuries sustained during the term thereof and effected solely through accidental means, and against sickness or disease contracted after 14 days from the date of the policy and during the term thereof; that the weekly indemnity provided by such policy is in the amount of $25; that such policy provides that, if such injuries shall, within 20 days after the date of the accident, wholly and continuously disable plaintiff and prevent him from performing every duty pertaining to his occupation, defendant will pay such weekly indemnity for the period of such continuous total disability for not to exceed 52 weeks and thereafter will continue the payment of such weekly indemnity as long as plaintiff shall be wholly and continuously disabled and prevented by such injuries from engaging in any occupation or employment for wage or profit; that on October 19, 1949, while plaintiff was at his work he sustained loss resulting directly, and independently of all other causes, from bodily injuries when he slipped on some oily water and went into a twisting fall; that thereafter, and to the present time, plaintiff has been and still is wholly and continuously disabled and prevented by such injuries from engaging in any occupation or employment for wage or profit; that from October 19, 1949, to date, defendant has paid to plaintiff such weekly indemnity at the rate of $25 per week for the weeks from October 28, 1949, to January 3, 1950, and from January 9, 1950, to July 9, 1950; that defendant has paid plaintiff at the rate of $12.50 per week for the weeks commencing September 25, 1951, and ending October 28, 1951; and that defendant refuses to pay such weekly indemnity at the rate of $25 per week for the period from October 19, 1949, to October 28, 1949, from January 3, 1950, to January 9, 1950, and from July 9, 1950, to date, by reason whereof plaintiff has been damaged in the sum of $5,666.08. Plaintiff prays for judgment in that amount, plus interest.
Defendant filed an answer to the amended and supplemental petition, in which it admits or alleges that it issued the policy of insurance in consideration of the payment of $22.70 for a term of six months; that such policy was renewed for successive terms and was in full force and effect on October 19, 1949; that under the terms of the policy defendant insured plaintiff against loss resulting directly, and independently of all other causes, from bodily injuries effected solely through accidental means and against sickness or disease contracted during the term of the policy; that the weekly accident indemnity is in the amount of $25 and the weekly sickness benefits are in the amount of $25 for total disability with house confinement and the weekly sickness benefits for total disability without house confinement are in the amount of $12.50; that the policy provides that, if the injuries should, within 20 days after the date of the accident, wholly and continuously disable the plaintiff and prevent him from performing every duty pertaining to his occupation, defendant will pay the weekly indemnity for the period of such continuous total disability for not to exceed 52 weeks and, thereafter, will continue the payment of such weekly indemnity as long as the plaintiff shall be wholly and continuously disabled and prevented by such injuries from engaging in any occupation or employment for wage or profit; that plaintiff sustained an injury while at his employment on October 19, 1949 (but defendant denies that he has been wholly and continuously disabled from the date of such accident and prevented from engaging in every duty pertaining to his occupation); that on October 28, 1949, plaintiff stopped work and was paid weekly accident indemnity until January 3, 1950, on which date plaintiff returned to his employment; that on January 13, 1950, plaintiff again stopped work and was paid weekly accident indemnity until July 10, 1950, on which date plaintiff returned to his employment; that plaintiff was employed from July 10, 1950, to September 25, 1951, a period of over 14 months, and then stopped work and was paid weekly sickness indemnity from September 25, 1951, to October 29, 1951, on the basis of four days at the rate of $25 per week and 29 days at the rate of $12.50 per week; that plaintiff returned to work on October 29, 1951, and was employed until February 7, 1952, at which time he stopped work; that defendant sent to plaintiff its draft covering sickness indemnity from February 7, 1952, to March 28, 1952, but such draft was not cashed, plaintiff claiming the right to receive accident rather than sickness indemnity; and that defendant is ready and willing to continue payment of sickness indemnity, in accordance with the terms of the policy, but has refused to make any payments of accident indemnity based upon the accident of October 19, 1949, for the reason that plaintiff was not wholly and continuously disabled by such accident and was not prevented from performing every duty pertaining to his occupation.
Defendant denies generally all allegations not admitted to be true.
In his amended reply plaintiff admits that the weekly sickness benefits were as stated in defendant's answer; admits the payments and his returns to work as alleged in plaintiff's answer; admits receiving and not cashing the sick benefit draft as alleged in plaintiff's answer; admits that defendant is ready and willing to continue payments of the weekly sickness indemnity provided in the policy; and denies all allegations the truth of which he does not admit in his amended and supplemental petition and his amended reply.
The policy of insurance referred to in the pleadings, so far as the accident indemnity is concerned, contains a provision that if "such injuries shall, within 20 days after the date of the accident, wholly and continuously disable the insured and prevent him from performing every duty pertaining to his occupation, the company will pay weekly indemnity at the rate hereinbefore specified for the period of such continuous total disability, but for not exceeding 52 consecutive weeks. After the payment of weekly indemnity for 52 weeks as aforesaid, the company will continue the payment of weekly indemnity at the same rate thereafter so long as the insured shall be wholly and continuously disabled and prevented by such injuries from engaging in any occupation or employment for wage or profit."
The injury which plaintiff suffered on October 19, 1949, was a severe one to his back, while he was at work. It resulted in a herniated disk in his spinal column.
Plaintiff was a grinder employed by the Timken Roller Bearing Company, and his job was to rough-grind and finish cones which he took from pans which had to be placed on a rack. After the cones were ground, plaintiff put them in another pan and continued that process until enough cones had been roughed out, and then the same procedure was repeated and the cones ground out a second time.
The pans of cones which had to be lifted on to the racks varied from comparatively light-weighted pans to those weighing as much as 100 pounds or more.
Plaintiff was on neither a salary nor an hourly wage rate but was paid entirely on a piecework basis, that is, according to the number of cones ground. His working hours were 40 hours for a five-day week, with occasional overtime work on Saturdays.
Ten days after his accident he stopped work and remained away until January 3, 1950, and, during his period of absence, was paid $25 weekly under his policy. He returned to work and on January 13, 1950, he again stopped work and was away until July 10, 1950, during which time he received his weekly payments, the defendant making no claim that the continuity of disability was broken during plaintiff's 10-day period of work.
On July 10, 1950, plaintiff returned to work with an O.K. from his physician and was continuously employed at his job on a piecework basis, with the exception of some few days which he took off, until September 25, 1951, a period of more than a year and two months, receiving on an average of $75 per week. He left his work on September 25, 1951, and defendant paid him sick benefits but refused further accident benefits. The sick benefits continued until October 29, 1951, at which time plaintiff returned and worked steadily until February 7, 1952, a period of more than three months, during which time he received substantial wage payments.
On February 7, 1952, plaintiff left his employment and has not worked since that time.
Plaintiff was again offered sick benefits but refused them, claiming the right to accident benefits.
During the time plaintiff was at work he made no claim for continuous accident benefits, his only claim being for the periods he was away from his employment.
Plaintiff says that, during the more than 14 months in which he worked, beginning July 10, 1950, he could not lift the pans of cones to the racks without help, that his fellow workmen helped him do so, and that during his eight-hour daily work he spent on an average of one and one-half to two hours per day resting and taking pills to relieve his pain, which was continuous. Nevertheless, the undisputed records of the company show that he was steadily working, and that, with the exception of a few days now and then, he worked all of August, all of September, all of October, all of November, with the exception of 12 days, and all of December, 1950, all of January, all of February, all of March, with the exception of eight days, all of April, all of May, all of June, all of July, all of August, and all of September up to the 26th, 1951; that he returned to work on October 29 and continued to work the rest of October, all of November, all of December, except a five-day vacation, 1951, and all of January and February until the seventh, 1952, from which date he has not returned to his employment.
At the close of all the evidence, defendant moved that the jury be instructed to return a verdict for defendant, which motion was overruled. The cause was submitted to the jury, which returned a verdict for the plaintiff.
A motion by defendant for judgment notwithstanding the verdict was overruled, as was also defendant's motion for a new trial, judgment having been entered on the verdict.
Upon appeal to the Court of Appeals, that court affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Knepper, White, Richards, Miller Roberts, for appellee.
Messrs. Porter, Stanley, Treffinger Platt and Mr. Bruce G. Lynn, for appellant.
The question with which we are confronted is whether plaintiff, within 20 days after the date of his accident, was wholly and continuously disabled and prevented from performing every duty pertaining to his occupation for a period of 52 consecutive weeks. If he was, then the judgment of the Court of Appeals is correct. If he was not, then that judgment is erroneous, and defendant's motion for judgment notwithstanding the verdict should have been sustained.
The evidence is undisputed that plaintiff received his indemnity payments from the date he stopped work after his accident until he returned to work, and that, since his first return entailed only about a week of employment, defendant made no claim that his total disability had ceased and paid him in full from the time of his second stopping of work until July 9, 1950, when he again returned to his employment.
Did his continuous employment from July 9, 1950, until September 25, 1951, stop the running of defendant's obligation to pay weekly indemnity accident benefits and make defendant's obligation one to pay only sick benefits?
That question entails an interpretation and construction of the clause in the policy quoted in the statement of facts.
Three months of the period of plaintiff's 14 months employment was within the period of 52 weeks from the date of his accident.
During those 14 months was plaintiff wholly and continuously disabled and prevented from performing every duty pertaining to his occupation?
It must be conceded for the purposes of our decision that plaintiff did have help in lifting pans of cones on to racks, and that occasionally fellow workmen helped him to increase his output of ground cones, which increased his pay, but it is also conceded that plaintiff himself worked for at least six to six and one-half hours every day, and that he did a considerable amount of overtime work.
In answer to interrogatories, the jury, which found for plaintiff, said that the average number of hours per day worked by plaintiff at Timken, during the period of July 10, 1950, to September 25, 1951, was at least six and one-half, nine of the jurors giving that answer, one juror giving the answer, seven to eight hours, and two jurors answering, eight hours.
In answer to an interrogatory as to whether plaintiff performed a substantial amount of work at his grinding machine at Timken from July 10, 1950, to September 25, 1951, the jury unanimously answered "yes." Likewise, the jury unanimously answered "yes" to the question as to whether plaintiff received substantial wage benefits for each biweekly period from July 10, 1950, to September 25, 1951. The jury likewise unanimously answered "yes" to the question, did plaintiff work at his grinding machine each working day with the exception of a few days now and then from July 10, 1950, to September 25, 1951?
It is true that the jury answered, with nine yesses and three noes, that from within 20 days after October 19, 1949, to the present time, plaintiff was wholly and continuously disabled and prevented from performing every duty pertaining to his occupation.
However, the question before us is whether that question should have been submitted to the jury.
The courts below were of the opinion that the clause in the policy with which we are concerned is ambiguous and that, since an insurance policy must be liberally construed in favor of the insured, and, in case of ambiguity, such ambiguity must be resolved against the insurer, a jury question was presented in the interpretation of the clause.
We are in entire agreement with the principles of law enunciated below.
It is too well settled to require supporting authority that, since the insurer prepares the policy of insurance, it must be liberally construed in favor of the insured, and, likewise, if there is a real ambiguity that ambiguity must be construed in favor of the insured. However, a policy is a written contract, and its terms must be given a reasonable construction. An ambiguity which is created by giving a strained or unnatural meaning to phrases or by mere casuistry does not constitute an ambiguity at all.
There are few expressions in use which can not be given a twisted meaning from what the expressions mean in their usual and ordinary sense.
In order to continue to receive his weekly indemnity payments plaintiff must have been wholly and continuously disabled and prevented from performing every duty pertaining to his occupation during the period from July 10, 1950, to September 25, 1951.
It seems to us that the plain and simple meaning of "wholly and continuously disable the insured and prevent him from performing every duty pertaining to his occupation" is entire disability and prevention from performing each one of the duties pertaining to the occupation; and that to twist that phrase into meaning that he is wholly and continuously disabled, if there is any single part of his duty that he can perform, is to engage in pure sophistry. The phrase does not say, "wholly and continuously disable the insured so as to prevent him from performing every duty pertaining to his occupation," but it does say, "wholly and continuously disable the insured and prevent him from performing every duty pertaining to his occupation," that is to say, in order not to have his weekly indemnity cease he must be both wholly and continuously disabled and prevented from performing every duty pertaining to his occupation.
If a person is working at his job for an average of six and one-half hours every working day for more than 14 months, even though he receives some lifting help from fellow workers, which is not against the rules of the employer, is working considerable overtime during that period and is earning and receiving, not as a salary or hourly wage but by piecework payment, an average of $75 weekly every bimonthly payday, it seems fantastic to say that that person is wholly and continuously disabled and prevented from performing every duty pertaining to his occupation.
As to the rule of reason in the construction of clauses in insurance policies, we refer to Groves v. World Ins. Co., 160 Ohio St. 355, 116 N.E.2d 204; Provident Life Accident Ins. Co. v. Bertman, 151 F.2d 1001; Hasson v. Mutual Benefit Health Accident Assn., 309 Mich. 331, 15 N.W.2d 659.
Plaintiff and the court below relied upon the cases of Gibbons v. Metropolitan Life Ins. Co., 135 Ohio St. 481, 21 N.E.2d 588, and Stuhlbarg v. Metropolitan Life Ins. Co., 143 Ohio St. 390, 55 N.E.2d 640.
It is true that in both those cases this court said that an insurance policy should be given a liberal construction in favor of the insured, and where the language is ambiguous it will be strictly construed against the insurer and that construction adopted which is more favorable to the insured.
As we have said, the doctrine there enunciated is so universally accepted that it needs no authority to support it. However, a careful reading of the Gibbons and Stuhlbarg cases will demonstrate that policies quite different from the one in the present case were involved, and that the decisions therein have no application to the question with which we are confronted.
It is true that in the Stuhlbarg case there was some question as to whether an insane man who was being paid $50 a week was totally disabled. However, the $50 was being paid by his two brothers out of their own pockets instead of out of the business, and as a result of a recommendation by the insured's physician that this would have a beneficial therapeutic effect. There was no question that that payment was not in the way of earnings but constituted a pure charity.
Doubtless if a person is totally disabled and, through the charity or beneficence of his employer or others, is kept on a salary, even though totally disabled, the insurer can not successfully contend against total disability because of such payment.
However, that question is not in this case.
As we have said, plaintiff was on neither a salary nor an hourly wage, and he could only earn according to the number of cones which he ground.
Much is made of the fact that plaintiff suffered practically continuous pain during the time he was working, but that of itself does not constitute whole and continuous disability. It is a matter of common knowledge that a large number of people suffer almost continuous pain while they are working at their professions, businesses and occupations, and, although that is a situation which evokes both admiration and sympathy, one can not say that it is a situation in which whole and continuous disability occurs.
We must remember that we are not measuring damages in a personal injury suit, or a claim under the Workmen's Compensation Act, but we are construing a contract, and that under the undisputed and conceded evidence in this case plaintiff was not wholly and continuously disabled and prevented from performing every duty pertaining to his occupation during the time he was at work for the more than 14 months from July 10, 1950, to September 25, 1951.
For the reasons stated, the Common Pleas Court was in error in refusing to grant defendant's motion for judgment notwithstanding the verdict, and the Court of Appeals was in error in affirming the judgment of the Court of Common Pleas.
The judgment of the Court of Appeals is reversed, and final judgment is entered in favor of defendant.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TAFT, JJ., concur.