MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, a Corporation, Appellant,
VIRGINIA PITTMAN, Administratrix of the Estate of WILBUR C. PITTMAN, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions to dismiss complaint.
Mr. G. W. Shute and Mr. Charles Bernstein for Appellant.
Messrs. McNabb & De Camp, for Appellee.
Wilbur C. Pittman brought this action against the Mutual Benefit Health & Accident Association to cancel a release of his accident insurance [39 Ariz. 219] policy, to reinstate such policy, and to recover as per its terms. Before trial the plaintiff died, and his wife Virginia Pittman, as administratrix of his estate, was substituted as party plaintiff.
On November 4, 1928, and while the policy was in full force, the insured, Wilbur C. Pittman, was severely injured in his back, or had his back broken, as alleged in the complaint, in an automobile accident. Under the terms
of the policy, he was to receive the sum of $200 per month and certain hospital fees so long as he suffered a total loss of time from his business by reason of accidental injury. Beginning with November 4, 1928, up to and including August 4, 1929, the defendant paid the insured $200 a month and hospital fees amounting all told to $2,250. On September 7, 1929, in consideration of $840 paid him, the insured, as a compromise, released and discharged the defendant from all further liability under the policy or on account of said injury.
The grounds upon which the release is asked to be canceled are that the defendant's doctor falsely and fraudulently represented to the insured that he would be a well man in not more than five months, and thereafter partially disabled for not more than three months, and that he believed and relied upon such assurances and representations, whereas, as a matter of fact, he did not get well within five months, but at the end of that period was in a worse physical and mental condition than at the time of settlement.
Defendant insists that the settlement was a good faith compromise of its liability, and should be upheld.
At the close of plaintiff's case, defendant asked for an instructed verdict on the ground that plaintiff had offered no evidence proving any misrepresentation, fraud or deceit in obtaining the release. This [39 Ariz. 220] motion was denied, and, under instructions, the case was given to the jury. The jury returned a verdict in favor of the plaintiff. The court entered judgment thereon for $1,960, the amount computed to be due under the policy after deducting the $840 paid for the release.
The defendant has appealed assigning as reasons therefor (1) the refusal of the court to grant its motion for an instructed verdict; (2) the insufficiency of the evidence to support the verdict and judgment; and (3) admission of evidence of the physical condition of the insured two years after the accident.
The first two assignments raise the same question. The evidence is not in conflict. The accident in which insured was injured occurred near Roswell, New Mexico. He was first taken to St. Mary's Hospital at Roswell, where he stayed two to four days. He was then removed to St. Joseph's Hospital at Albuquerque, New Mexico, and was a patient of Doctor Lovelace and his partner Doctor Elliott. After about a month, he went to St. Luke's Hospital in Denver, Colorado, and was there about a month under the care of Doctor Sevier, a noted bone specialist. He returned to Albuquerque, and, after a short stay, went to Letterman's General Hospital in San Francisco for two or three weeks. He was also a patient at the Veterans' Hospital, Whipple Barracks, Prescott, Arizona, for a short time. He made all these trips to different hospitals, so far as the evidence shows, unattended. Within a month after his injury he could, by bracing the injured part of his body with a cast, walk some.
On or about the latter part of July, 1929, a claim auditor of the defendant by the name of Shockey, living in Albuquerque, raised the question of the possibility of stopping payments for total disability, and induced the insured to let Dr. Rice, the defendant's [39 Ariz. 221] local doctor, examine him. Shockey, as the agent of the defendant, had been in touch with the insured from the time he first arrived in Albuquerque, and had attended to the details of making the monthly payments to him. At the time of making the July, 1929, payment, Shockey suggested that, since the insured was able to walk and was not continuously confined to his bed, he was no longer totally disabled from attending to his business, and that he should be willing to accept the payment for partial disability as provided in the policy, or the sum of $80 per month for three months. Doctor Rice made a thorough examination of the insured, taking X-rays, and "told him that within about five months he would be as well as he ever was."
Immediately after getting Doctor Rice's report the insured and the plaintiff, his wife, collaborated in drafting a compromise proposition in the form of a letter to be mailed to the defendant at its home office at Omaha, Nebraska, by the insured after he had gone to Shreveport, Louisiana, and obtained the advice of Doctor Willis, of the Willis-Knighton Clinic, "an old friend of his family." The insured then left Phoenix, to which place he and his wife had gone, for Shreveport. He was a patient of the Willis-Knighton Clinic for two or three weeks under the care of Doctor Willis. Under date of August 27, 1929, the insured wrote from Shreveport to the defendant at Omaha as follows:
"I wrote Mr. E. F. Shockey, Albuquerque, N.M. to an advance settlement of my claim, had a reply from him stating that he had forwarded the letter to you for reply. Have not had a reply from you up to this time. Am writing to know if it is possible for you to make such settlement at this time.
"I am under care of the Willis-Knighton Clinic, 2622 Greenwood road, Shreveport, La. My doctor, Dr. J. C. Willis Jr. advised me that i would be totally [39 Ariz. 222] disabled at least to the first of the year and partially disabled for several months after that, in fact, he states that i will not be able to return to my former occupation as lumber salesman for a year or so on account of the vibration of car.
"The other Doctors advised me that I would be disabled for a year to eighteen months, but I am willing to take Dr. Willis' advice as a basis for an advance settlement. ...