Commercial Casualty Insurance v. Zajic

Johnson, J., delivered the opinion of the Court. Claiming disability indemnity by reason of the loss of the entire use of one hand and one foot within the meaning and terms of a disability policy issued by Commercial Casualty Insurance Company, James Zajic brought suit and recovered judgment for four hundred and fifty dollars in the Superior Court of Baltimore City, and from this judgment an appeal is prosecuted by the insurer. ³⁷¹ During the trial five exceptions were taken by appellant to adverse rulings made by the trial court. The first four of these concern the evidence, and the fifth relates to its action upon the prayers. At the time of the issuance of the policy and down to the date of his alleged incapacitation by reason of illness, appellee was a special policeman for the Baltimore & Ohio Railroad Company, his duties being that of a watchman at Locust Point, and the policy by which he was insured listed his occupation as “special agent.” The provisions of the policy to which it is deemed necessary to refer are as follows: “The Insuring Clause — This policy insures against— (1) the effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of the policy solely through External, Violent and Accidental Means (Suicide, sane or insane, not included), said bodily injury so sustained being hereinafter referred to as ‘such injury’ and (2) disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in force for thirty days from its date, hereinafter referred to as ‘such illness,’ as follows: “Part I — Principal sum........................Six Hundred Dollars “Monthly Accident Indemnity...........................Sixty Dollars “Monthly Illness Indemnity..............................Sixty Dollars” “Part IX — Permanent Disability Indemnity — If, during the period of disability covered by Part VIII, ‘such illness’ alone shall result in the insured’s irrecoverable loss of the entire sight of Both Eyes, the permanent loss of the entire use of Both Hands, or Both Feet, or One Hand and One Foot, and provided the insured survives such loss for one year, the Company will pay in addition to any other indemnity payable hereunder, a lump sum equivalent to ten times the Monthly Illness Indemnity specified in Part I.” It was provided in Part VIII, Sec. (a), that for the period not exceeding six consecutive months, during which the insured should be necessarily and continuously ³⁷² confined in the house and regularly visited at least once every seven days by a legally qualified physician, solely by reason of “such illness,” the company would pay illness indemnity at the rate per month specified in Part I. By the first count of his declaration, appellee sought to recover the difference between six monthly illness indemnity payments of sixty dollars each mentioned in the policy, less six payments of forty-five dollars per month for six months which were made him by the insurer, and by the second count to recover for the permanent loss of the entire use of one hand and one foot a sum equivalent to ten times the monthly illness indemnity.

The insurer contended that bécause of Zajic’s occupation he was by the policy improperly rated, and that the rating should have been forty-five dollars per month, which amount it had paid him for six consecutive months in accordance with the terms of the policy, and further made the contention that he had not lost the entire use of one hand and one foot within the meaning of Part IX of the policy. The verdict of the jury having been for the plaintiff for $4.50 instead of $600, it must follow that appellant’s contention with respect to the amount of monthly illness indemnity, to wit, forty-five dollars, was accepted. But regardless of whether this is true, that matter is not before us, as no instruction concerning it was requested either by appellant or appellee, nor is the question presented by any ruling made upon the admissibility of evidence. At the trial below, it was stipulated that the plaintiff had paid all premiums under the policy, that proof of loss, demand and notice as required by its terms had been made, and “it is simply a question of construction.” It was further admitted that the plaintiff met with some illness on September 17th or 18th, 1935.

The defendant’s first and second prayers were refused, its third and fourth granted in connection with plain ³⁷³ tiff’s first and second, but its fifth was refused because covered by its third and fourth. Appellant's first and second prayers sought instructed verdicts for the defendant, the former upon the ground that the plaintiff had offered no legally sufficient evidence to prove he had suffered the permanent loss,of the entire use of one hand and one foot, and the latter upon the ground that the plaintiff had offered no evidence legally sufficient to entitle him to recover. Since both prayers were offered at the close of the entire case, and were limited entirely to the evidence offered by the plaintiff, it cannot be contended that, as thus presented, they were adequate as demurrer prayers. Day v. Weinstein, 148 Md. 104 , 128 A. 897 ; Schnader v. Brooks, 150 Md. 52 , 132 A. 381 ; Johnson v. Western Maryland Rwy.

Co., 151 Md. 422 , 135 A. 185 ; Prince George’s County v. Timmons, 150 Md. 511 , 133 A. 322 . But apart from this, even though the prayers had been broad enough to relate to the entire evidence offered, we are of the opinion that they should have been rejected, for the reason that the evidence was sufficient to require its submission to the jury upon the question as to whether appellee had sustained the permanent loss of the entire use of one hand and one foot within the meaning of the policy. The plaintiff testified in effect that subsequent to his illness on September 18th, he was getting ready to go to work and fell from his chair. After getting up, he went to work, but was compelled to return home shortly thereafter, and after sitting on his porch for a few minutes he lay down, from which time he could not walk, and for three months afterwards was unable to stand on his feet, and at the time of the trial he could not stand on them at all; that from March, 1936, he got out on the pavement and walked in the sun, but could not use his left arm, and at the time of the trial his left arm was simply “dead,” and his foot was “gone” ; that he could not grasp anything with his left hand and was unable to cut up his food; he could only move the large toe of his left foot, and had no movement of his ³⁷⁴ foot ,and ankle, and his right foot took care of the left.

He further testified that he put weight on his right foot and got off the left as fast as he could; that he dragged it along and got the motion with his left leg from the hip; that since he took out the policy he had not changed his occupation, which was that of special police for the Baltimore & Ohio Railroad, his duties being to watch the piers at Locust Point; that upon a few occasions he had ridden down town on the street car and visited offices, but usually he was accompanied by his sister, who held him by the left arm, and in addition to her support he was required to use his cane, and with the aid of the cane, and his sister on his left side, he could walk. His sister, Amelia Smith, substantially corroborated him. Doctor Henry C. Houck testified that in September, 1935, he was first called in the case and observed that Zajic had a total paralysis of the left side of the body, which meant that a hemorrhage had occurred on the right side of the patient’s brain, causing facial paralysis, shoulder, left hand and left leg complete paralysis; that while he had normal use of the right side, the flexors of his left hand were entirely paralyzed, 'and he could pick up nothing satisfactorily, his hand being “no good” to him; that he could swing his foot, but could not stand upon it; and the movement of the left limb from the knee down was accounted for by the use of the upper muscles. He further stated he had paraesthesia of the tissue, which was a dead sensation, the flexors were involved, ;and he could not handle his foot.

He said: “When he takes a step he has got to drag,his foot. He walks with a rolling gait. He has trained himself to use his hip muscles; his foot is no good to him.” Appellant produced three witnesses, the first of whom was Arthur R. Padgett, -an attorney, who testified in substance that upon three or four occasions he had seen appellee at his office, and had seen his sister, Mrs. Smith, on some