OCCIDENTAL LIFE INS. CO.
Conner & Jones, Tucson, for appellants.
Udall & Udall, Tucson, for appellee.
PHELPS, Chief Justice.
Plaintiff-appellee, Helen F. Bocock, commenced this action in the superior court [77 Ariz. 52] of Pima County to recover from defendant-appellant, Occidental Life Insurance Company of California, upon the provisions of a group insurance health and accident policy issued by it covering employees of the University of Arizona, including plaintiff. A trial upon the merits was had before the court sitting without a jury, resulting in a judgment awarding plaintiff the sum of $225 from which defendant appealed to this court. The parties hereto will be hereinafter referred to as plaintiff and defendant as they appeared in the trial court.
The pertinent provisions of the policy are as follows:
'Part II. Sickness Indemnity. If the Insured shall by reason of sickness be wholly and continuously disabled and prevented thereby from performing any and every duty pertaining to his or her occupation and shall be under the weekly care of a licensed physician or surgeon, the Company will pay indemnity at the rate hereinafter stated for the number of consecutive days of disability, beginning with the eighth day of disability, and continuing for not more than 52 weeks for any one sickness. * * *'
'Part IV. Vacation Period or Leave of Absence. If during any vacation period or leave of absence the physical condition of the Insured for any period is, as the result of accident as provided in Part I, such that he or she would have been totally disabled if school were in session, then that Insured shall be considered totally disabled during that period and full accident indemnity will be paid as specified in Part I but in the event disability is the result of sickness, as provided in Part II, then sickness indemnity as specified in Part II will be paid only during the period after the first week in which the Insured is necessarily and continuously confined within the house and attended weekly therein by a licensed physician or surgeon.'
During the vacation period of 1952, to wit, on July 9, plaintiff suffered a gall bladder attack and thereafter on July 18 underwent surgery therefor, remaining in the hospital until July 23 when she returned to her home. She remained at home and was cared for by another nurse with whom she lived until she returned to work on September 1 when she resumed her duties as head nurse of the infirmary at the University. During the period she was at home she was not visited in the home personally by her doctor but was in telephonic communication with him, under his instructions to call him once a week during the period; she was driven to his office by her associate nurse for a checkup and report on August 1 and August 18; on one occasion she was driven in the automobile
to a neighbor's house and sat in the car and visited with such neighbor for a few minutes; on two occasions she was driven in the car to market and sat in the car [77 Ariz. 53] while groceries were purchased. She managed to spend at least an hour a day, if possible, in the sunshine. She made it a practice to walk in the yard a little while each day. Walking, sunshine and fresh air were prescribed by her doctor as proper postoperative procedure.
There are no disputed facts in the case and the rights of the parties must rest upon the interpretation given to the following language used in Part IV of the policy, to wit:
'* * * sickness indemnity as specified in Part II will be paid only during the period after the first week in which the Insured is necessarily and continuously confined within the house and attended weekly therein by a licensed physician or surgeon.' (Emphasis supplied.)
The construction of the 'indoor clause' above set forth is the only matter presented for our determination.
The plaintiff contends that said 'indoor clause' of the policy should be liberally construed in accordance with the majority rule in this country. Defendant insists that the language used is unambiguous and means what it says. It further urges that the case of Mutual Benefit Health & Accident Ass'n v. Ferrell, 42 Ariz. 477, 27 P.2d 519, 524, is decisive of the issues in this case. Although the 'indoor clause' construed in the policy in the Ferrell case, supra, is similar to that used in the policy here involved it is not identical by any means and there is a considerable difference in the policies as a whole and certainly a wide divergence in the facts of the two cases. In arriving at the meaning of the 'indoor clause' (Part H) of that policy the court very properly construed it in the light of the other provisions thereof, to wit, Part I which provided for the payment of indemnity to the insured when not continuously confined indoors during the period of illness. It did require, however, that the insured must have regular medical attention, and provided that said disease must necessitate total disability and total loss of time. The facts in that case showed that defendant traveled extensively over the United States during the time for which he claimed indemnity.
The court said in that case that if it were to give to the phrase 'continuously within doors' a meaning other than that it required the insured to be literally confined in the house at all times, it would render Part I thereof nugatory. The court discussed Reeves v. Midland Casualty Co.,170 Wis. 370, 174 N.W. 475, which gave a similar clause a strict construction and denied recovery where the insured left the house for the purpose of receiving treatment from a physician at places other than the house. It also discussed the case of Mutual Benefit Health & Accident Ass'n v. McDonald,73 Colo. 308, 215 P. 135, which took the opposite view and declared that the language used must be liberally construed and [77 Ariz. 54] held that the vital point in the provision construed was ...