United Security appeals from a nonjury judgment in the amount of $756 upon an
Aside from the propriety of certain questions and answers accepted by the court, this appeal mainly hinges on whether or not a man insured under an accident indemnity policy who loses a leg is due total disability benefits where the policy calls for another specific but lesser benefit for the loss of a limb.
No certificate of service of the assignments of error on appellee is in the record. But Kelley, by not moving to dismiss, has waived this omission. Edge v. Bice, 263 Ala. 273, 82 So.2d 252.
The insuring clause provides indemnity "against loss of limb, sight or time."
Kelley's brief controverts United Security's statement of the facts, e. g., United Security's brief says Dr. Herrod, a surgeon, treated Mr. Kelley during forty days, but it leaves out the details of the treatment.
The main medical facts from the record follow:
We quote from appellee's brief:
National Life & Accident Ins. Co. v. Davies, 34 Ala.App. 290, 39 So.2d 697, involved facts some of which differ from those here:
Davies Kelley1. Accident Rock fall Run over by mine car 2. Specific loss clause "Both feet" "Limb" 3. Specific loss Legs (amputation Leg (amputation needed) needed) 4. Total disability From legs From leg alone and broken pelvis
The Davies case follows the reasoning of Kangas v. Standard Acc. Ins. Co., 138 Minn. 418, 165 N.W. 268, L.R.A.1918B, 504, i. e., both courts put a strict construction on the specific loss clause, in that the loss of a limb (i. e., in Davies the leg, in Kangas the arm) does not include—for the purposes of the policy—the lesser included dependent member, i. e., in Davies the foot, in Kangas the hand.
The loss of Kelley's leg between the ankle and the knee is the loss of a "limb" under his policy. If this were the only result of the injury, there might be doubt as to the disability clause operating.
Since there was evidence that the combination, loss of leg and pelvic fractures, resulted in total disability for a year, the trial judge could make a valid finding for Kelley, certainly to the time of filing. See Kinard v. Mutual Benefit Health & Acc. Ass'n, D.C., 108 F.Supp. 780, and cases therein cited, particularly Rabb v. North American Acc. Ins. Co., 28 Idaho 321, 154 P. 493.
In the Kinard case, supra, we find (108 F.Supp. at page 788):
Kelley's policy had no proviso to exclude from the total disability clause injuries which also resulted in the loss of a limb.
Assignments 4, 5, 6, 7, 8, 9 and 10 are argued seriatim in brief with a single argument, to which reference is made, under the heading designated by each numbered assignment, e. g.:
"Assignment of Error No. 5
At least one common thread runs through these claimed errors. Hence, we can review within the scope of the common point. Christian v. Fidelity & Cas. Co. of N. Y., 264 Ala. 616, 88 So.2d 840. Cf. Stiles v. Lambert, 39 Ala.App. 15, 94 So.2d 784, where unlike assignments could not be argued by reference.
The common argument relates to the rule in Equitable Life Assurance Soc. of United States v. Davis, 231 Ala. 261, 164 So. 86, and in Volunteer State Life Ins. Co. v. Davis, 31 Ala.App. 167, 14 So.2d 162, which does not permit medical testimony on a matter of common knowledge because it impinges on the function of the jury to decide the ultimate issue. See Alabama Great So. R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.
Equitable Life Assurance Soc. of United States v. Davis, supra [231 Ala. 261, 164 So. 87], involved a total and permanent disability clause in a group life policy. The offending question asked the physician was:
Bouldin, J., speaking for the court, said:
Volunteer State Life Ins. Co. v. Davis, supra [31 Ala.App. 167, 14 So.2d 166], held it was not error to sustain an objection to a question as to whether the medical witness himself was capable of deciding whether Davis was totally and permanently disabled "within the terms" of the policy. This was asking the witness as to his own expertness, which vice we should suppose sufficient to support the ruling. Bricken, P. J., preferred, however, to rest his reasoning on the usurpation concept.
The contrast between Travis v. Louisville & N. R. Co., 183 Ala. 415, 62 So. 851, and Birmingham News Co. v. Payne, 230 Ala. 524, 162 So. 116, illustrates the positive and negative poles of the idea of usurpation by an expert.
Thus, in Travis we find de Graffenried, J., saying [183 Ala. 415, 62 So. 855]:
From Payne, we excerpt [230 Ala. 524, 162 So. 120]:
"To which he answered: `A. Came from the injury.'
In the instant case, for Dr. Herrod, who had illustrated his testimony with X-ray pictures of both the leg break and the pelvic fractures, to be asked as to Kelley's continuous total disability was asking about a latent condition not readily susceptible of everyday observation, and, therefore, medical testimony was apt. Mobile Life Ins. Co. v. Walker, 58 Ala. 290, "a bodily infirmity not disclosed."
The dictum in Life & Casualty Ins. Co. v. Bell, 235 Ala. 548, 180 So. 573, 576, i. e.,
seems to have been validated in Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633.
Assignment 12 concerns a question asked Mr. Kelley on direct examination: "I will ask you whether or not you have been able to do any kind of work?" In the light of the context of Kelley's prior testimony as to exertion and pain, the trial judge properly treated the question as calling for a statement of a collective fact. Moreover, without objection, Kelley had testified that he was unable to do any physical work and that manual labor was all he was suitable for by trade and training. We fail to see how testimony as to inability to do "any kind of work" could injure United Security. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
We cannot agree with Assignment 1 (error in overruling of demurrers). The policy was made a part of the complaint; hence, an allegation of disability within its meaning sufficed. The policy maximum was $1,080, the payments were monthly, $324 was admitted paid and the suit claim was for the difference, i. e., $756; therefore, United was apprised of the length of time (i. e., until exhaustion of benefits) for which Kelley was claiming. Kelley's allegations that the policy was his property and that he had paid the premiums sufficed as a claim that the policy was in effect. Police & Firemen's Ins. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156; Jefferson Standard Life Ins. Co. v. Simpson, 228 Ala. 146, 153 So. 198.
United Security's Assignment 2 would put the trial court in error for "failing to enter a decree on appellee's plea of recoupment and payment." Inasmuch as Proposition of Law II accepts the total and permanent disability definition set forth in Protective Life Ins. Co. v. Wallace, 230 Ala. 338, 161 So. 256, most of this argument is limited to the insufficiency of the evidence, but on this point it is not properly predicated on a narrative of testimony as required under Supreme Court Rule 9. 261 Ala. xxii-xxiii.
United Security, under Assignment 3, argues that Kelley failed to prove notice to the company. However, Proposition of Law IV, cited in brief to support the argument as to notice, reads:
This proposition does not directly connect up with the argument. Moreover, Kelley adduced proof by a letter from United Security denying liability under Section B and referring to the $324 paid and that the company was aware of his claim. We
Under part of Assignment 3's argument "all that has been set forth under the argument" of 2 is adopted. Strictly, since the two assignments have only one element in common ("recoupment"), the adoptive method is inappropriate, Stiles v. Lambert, supra, except as to recoupment which we have gone into above.
Assignment 14 (error in judgment because of Kelley's failure to prove notice), Assignment 15 (error in denying United Security's plea of payment), Assignment 16 (error in awarding $756 under Section "B" rather than "A") and Assignment 17 (error in awarding judgment for Kelley for his being continuously and totally disabled, etc.) have been above discussed.
The motion for new trial and Assignment 13 raise the propriety of the amount of recovery, $756, which represented the gross policy amount, $1,080, less $324 which United Security had paid Kelley before the complaint was filed on July 11, 1958. The trial judge seems to have allocated $270 of the $324 as a lump sum for the loss of the limb under Section A with the remaining $54 applied under Section B.
The accident befell Kelley October 1, 1957. He sued after the lapse of nine months which covered enough total disability installments then accrued which, with the $270 as a lump sum, made $756 suit amount due and unpaid.
However, if we allocate any benefits as a lump sum under Section A (loss of limb), then we are confronted by the last sentence of that section:
This language does not here come within the ambiguity rule and hence is due the same treatment for fair meaning as required in all plainly worded contracts.
Under the Davies case, supra, we understand that the specific loss and the disability clauses stand as alternatives. In that case the specific loss clause did not come into play because the loss of legs, resulting in total disability, put the higher obligation into effect. So here we think Section B operates to the exclusion of Section A.
Under the instant policy and facts, Mr. Kelley, on his present complaint, is entitled to $90 a month plus interest
We have reached this conclusion as to Assignment 13 upon a consideration of Code 1940, T. 9, §§ 62 and 64, and T. 7, § 140, which latter section we quote in part:
"* * * if the breaches occur at successive periods in an entire contract (as where money is to be paid by installments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein."
Thus, in A. P. Carrico & Son v. J. E. Duval Printing Co., 219 Ala. 65, 121 So. 59, 60, the court, per Bouldin, J., said:
Accordingly, the judgment will be affirmed on condition of appellee's filing, within thirty days, a remittitur following the above principles; otherwise, the judgment will be reversed and the cause remanded.
"Section `A' Specific Losses
"Section `B' Accidental Total Disability