2 So.2d 638

#### POWELL v. LIBERTY INDUSTRIAL LIFE INS. CO., Inc.

No. 36125.

April 28, 1941.

Rehearing Denied May 26, 1941.

*895Isaac Wahlder, of Alexandria, for applicant.

Leo Gold, of Alexandria, for respondent.

ROGERS, Justice.

The facts in this case are admitted. Briefly stated, they are that the insured, Robert Williams, became insane in February, 1933, and was confined in the 'Central Louisiana Hospital for the Insane, Pine-ville, Louisiana, until his death on April 27, 1938. Williams was insured by the defendant company and the premiums were paid on the policy up to April 27, 1938. The suit is by the administrator of the Succession of Williams, who seeks to recover $550, representing disability benefits of $5 per week for 110 weeks, beginning March 1, 1933, and ending April 27, 1938. Plaintiff also sues for interest, penalties, and attorney’s fees under the provisions of Act 310 of 1910.

The district court rendered judgment in favor of plaintiff for the full amount claimed, but rejected the demand for penalties. The Court of Appeal, 1 So.2d 834, amended the judgment by reducing the principal amount of the award from $550 to $15. The case was brought here on a writ of certiorari.

*897It is admitted that the insured, Robert Williams, while necessarily confined in the asylum on account of his insanity, was not confined to his bed.

There are two provisions in the policy which relate to indemnities payable on account of sickness. The first provides that such benefits will be paid only for each period of seven consecutive days that the insured is, by reason of illness, necessarily confined to bed and is under the care of a duly licensed and practicing physician. The number of weekly benefits payable in any twelve-month period is limited to one hundred and twenty. The second provides for the payment of one-half the amount for a period not exceeding six weeks for sickness that does not confine the insured to bed, but does confine him or her strictly to the house for seven consecutive days, provided always that the combined periods, for which indemnity shall be paid for total and partial disability as above described under number 2, shall not exceed twenty weeks in any twelve months.

The question presented for decision is, which of the two sick benefit provisions of the policy applies to the facts of this case? Is plaintiff entitled to twenty weeks sick benefits out of each twelve-month period under the provision requiring that the insured be confined to bed, or is he entitled to one-half the regular weekly sick benefits for six weeks, under the provision requiring the insured to be strictly confined to his house?

The relator relies on the case of Lewis v. Liberty Industrial Life Insurance Company, 185 La. 589, 170 So. 4, 107 A.L.R. 286. And the respondent relies on the case of Clesi v. National Life & Accident Insurance Company, 195 La. 736, 197 So. 413.

In the Lewis case, this Court recognized insanity as a sickness within the terms of a life and accident policy which conditioned the insurer’s liability upon the insured’s necessary confinement to bed and held that an insured who was insane and not confined to bed was entitled to recover on the policy.' The recovery was allowed by the Court on the theory that the contracting parties in using the term “confined to bed’’ merely intended to express a degree of incapacity or disability.

In the Clesi case, this Court had under consideration a policy providing for house-confining sickness and for nonhouse-confining sickness, and the Court held that an insured, who was totally disabled as the result of a heart affliction but was not confined to his house, was entitled to indemnity only for nonhouse-confining sickness. The Court of Appeal, in the present case, held that the Clesi case, and not the Lewis case, was decisive of the issues involved in this case.

An examination of the opinion in the Clesi case shows that the decision was predicated upon the following facts : Clesi, the insured, was a barber. He became afflicted with a disease of the heart known as angina pectoris. On January 31, 1937, he suffered a severe attack while attending a funeral. He was carried to his home where he remained in bed five or six weeks, attended regularly by a physician. At the *899end of that period, he returned to his barber shop and attempted to engage in his usual work, but owing to recurring attacks he was advised by his physician on December 31, 1937, to give up his trade altogether, which he did. Although Clesi was unable to follow his trade during the entire year of 1937, he did not make any claim for indemnity for that year, because he failed to give the insurance company the required ten days notice of his illness. Clesi’s suit was for the recovery of the full indemnity of $15 a week for 26 consecutive weeks, beginning March 1, 1938, under a provision of a policy which was similar to one of the provisions of the policy involved in this case. At the time of the suit, the facts relating to Clesi’s physical condition were as follows:

He was totally and permanently incapacitated to follow his usual trade, but he owned four pieces of property which he leased. He maintained a desk in the front room of his barber shop and required his tenants to pay rents to him there. He kept a cash book and visited the bank about once a week for the purpose of depositing the money he collected. He visited his properties to see that they were kept in repair and, when repairs were needed, he caused them to be made by others under his supervision, calling at the place where the repairs were being made to see that the work was properly done. Clesi was not confined to the house at the time the suit was brought and never had been so confined since March 1, 1938, the date from which he claimed indemnity. Under these facts, this Court, affirming the judgment of the Court of Appeal, held that Clesi was not entitled to indemnity for twenty-six weeks under the clause of the policy covering house-confining sickness, but he was entitled to indemnity for four consecutive weeks at the rate of one-half the weekly indemnity under the clause of the policy covering nonhouse-confining sickness.

 This Court, in the Clesi case, discussed its previous decision in the Lewis case and pointed out the difference between the cases. The Clesi case is authority for the proposition that under a policy providing for two kinds of indemnity, one for house-confining, and the other for nonhouse-confining, illness, recovery will be allowed only for the latter case where the facts show that the insured was not only not confined to his house, but was able to attend to certain business matters. The Lewis case is authority for the proposition that an insured who, by reason of insanity, is confined to the house but not to the bed is entitled to indemnity under a policy providing that the insured be confined to the bed — the provision “confined” to bed expressing the degree of disability necessary for recovery.

We think that the decision in the Lewis case is more appropriate than the decision in the Clesi case to the question involved in this case.

It is true that in the Lewis case, in which the same defendant was also involved, the only clause of the policy under review was the clause providing for the payment of indemnity where the insured is confined to his bed. This may have been due to the belief entertained by the insurance *901company that in the case of an insured who becomes insane, the only question that could arise respecting the company’s liability was whether the insured was or was not confined to his bed, and not whether he was merely confined to his home. Be that as it may, we can not conceive of any affliction that would incapacitate the victim to a greater degree than insanity. It is difficult for an insured who becomes permanently disabled by insanity to meet the conditions imposed by the literal terms of the policy. For that reason the liberal rule of construction has been applied to policies of this kind, and the basis of the holding is that the fair intent of the policy contract is to insure against disability, the degrees of which are expressed by the policy. Thus this Court has construed the requirement of a policy that to be entitled to indemnity the insured must be confined to his house as meaning inability to work rather than physical inability to leave the house. Newton v. National Life Insurance Co., 161 La. 357, 108 So. 769. And in the Lewis case, as we have pointed out, the Court has construed the requirement in the policy, that the insured must be confined to his bed, as meaning in the case of an insured who is absolutely disabled by insanity, physical inability to leave the house, and not merely physical inability to leave his bed.

No difference in the premium rates is specified in the policy. All the promised indemnities are based on the same rate, whether the disability of the insured is partial or permanent. It is not disputed that the disability of the insured in this case was permanent. The degree of his disability was fixed beyond question by the nature of his sickness. Whether he was confined to his bed or merely to his home is of no importance. The extent of his disability was the same in either case. If we were to interpret the policy as required by defendant, in every case where the insured becomes insane and remains in bed, he would be entitled to receive twenty weekly benefits in each year; whereas, if he fails to remain in bed but is necessarily confined to the house, he would be entitled to receive only six weekly benefits of one-half the amount otherwise payable under the terms of the policy. An interpretation of a policy that would lead to such an absurd consequence can not be accepted. As we said in the Lewis case, the; purpose of the clause requiring confinement to bed was to make certain of the insured’s disability and to protect the insurer against imposition. That purpose has been met in this case, for there is no uncertainty as to the insured’s disability and no question of any imposition being practiced upon the insurer.

For the reasons assigned, the judgment of the Court of Appeal is annulled and the judgment of the district court is reinstated and made the judgment of this Court.

O’NIELL, C. J., does not take part.

ODOM, Justice

(dissenting).

It is admitted that the insured Robert Williams was entitled to benefits under the policy. The only question involved is whether he was entitled to receive bene*903fits under “Condition” 2 or under “Condition” 12 of the policy.

Condition 2 of the policy reads as follows :

> "2. Weekly benefits for sickness will only be paid for each period of seven consecutive days that the insured is, by reason of illness, necessarily confined to bed and that he shall remain under the professional care of a duly licensed and practicing physician. Weekly benefits for accident will only be paid for each period of seven consecutive days that the insured is, by reason of accidental injury, disabled from work of any nature, provided that there is external evidence of such injury for the time paid. The number of weekly benefits payable under this Policy in any twelve consecutive months is limited to twenty.”

Condition 12 of the policy reads as follows :

> “12. One-half of the amount payable hereunder, will be paid for a period not exceeding six weeks for sickness that does not confine the insured to bed, but does confine him or her strictly to the house for seven consecutive days, or for accident that does not totally disable the insured, but does prevent him or her from performing the daily duties essential to his or her occupation for seven consecutive days, provided always that the combined periods for which indemnity shall be paid for total and partial disability as above described under number 2, shall not exceed twenty weeks in any twelve months.”

Paragraph 2 of the agreed statement of facts reads as follows:

> “2. That the insured, Robert Williams, while necessarily confined in the Asylum on account of his insanity, was not confined to his bed while in the Asylum.”

Clearly the insured was not entitled to benefits under Condition 2 of the policy because he was not “necessarily confined to bed”. It is equally clear that he was entitled to receive the benefits provided for in Condition 12 because he was “strictly confined to the house” but was not confined to his bed.

There is not the slightest doubt as to the meaning of these provisions of the policy. Their meaning is so clear that they cannot be misunderstood. The sick-benefits are provided for in two separate and distinct paragraphs. Under Paragraph or Condition 2 the beneficiary was entitled to receive certain amounts if necessarily confined to bed, and under Paragraph or Condition 2 was entitled to receive one-half the amount specified in Paragraph 2, “for sickness that does not confine the insured to bed, but does confine him or her strictly to the house”.

According to the agreed statement of facts, the insured in this case, because of his affliction, was confined to the house but not to his bed. In the majority opinion it is held that the insured was entitled to recover the benefits provided for in Paragraph or Condition 2. That holding ignores entirely the express provisions of the policy. It, in effect, writes out of the policy that which is expressly written in its face. The two conditions or clauses are separable. Each provides for benefits for total disability resulting from sickness, the *905amount of the benefits depending upon the degree of sickness. For the higher degree of sickness, which is such as to .confine the insured to his bed and which is referred to in Paragraph or Condition 2, the insured was entitled to a certain specified amount. A second or lesser degree of sickness is recognized and provided for in Paragraph or Condition 12. For this second or lesser degree of sickness, which confines the insured to the house but not to his bed, the insured is entitled to only one-half that amount.

In Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72, 75, 125 A.L.R. 1075, we quoted with approval the following extract from 14 R.C.L., Section 103, pp. 929-931:

> “In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability, and to impose whatever conditions they please upon their obligations not inconsistent with public policy; and the courts have no right to add anything to their contracts, or to take anything from them.”

This court has repeatedly held that an insurance policy is the contract between the parties, and, like all other contracts, it is the law between them. Dorsett v. Thomas, 152 La. 60, 92 So. 734; Laporte v. North American Accident Ins. Co., 161 La. 933, 109 So. 767, 48 A.L.R. 1086.

If there were only one clause in the policy providing for benefits in case of disability due to illness, and if the only question involved were whether the insured was entitled to benefits under such provision, I would concur in a ruling that the policy should be liberally construed in favor of the insured. But here there are two separate and distinct paragraphs in the policy, each providing for benefits of á certain amount under certain stipulated conditions. According to the agreed statement of facts, the conditions under which the insured would be entitled to the maximum amount of benefits under the policy do not exist. And, since those conditions admittedly do not exist, the holding that the insured is entitled to the maximum amount is, in my opinion, clearly a violation of the policy contract.

The Court of Appeal held, and I think correctly, that the ruling in the case of Clesi v. National Life & Accident Ins. Co., 195 La. 736, 197 So. 413, is decisive of the issues involved in the present case. In that case, as in the present case, there were two separate and distinct clauses providing for benefits, under one of which the insured was entitled to a certain amount in case of total disability which necessarily confined him to his house. Under the other and separate and distinct clause, he was entitled to a lesser amount in case he was totally disabled but not necessarily confined to his house. The plaintiff in that case claimed the maximum amount. The testimony showed that he was totally disabled but that his disability was not such as to confine him to his house. We held that he was not entitled to the full benefit provided for in the first section of the policy providing for benefits.

*907I do not think that the ruling in the case of Lewis v. Liberty Industrial Life Ins. Co., 185 La. 589, 170 So. 4, 107 A.L.R. 286, is applicable to the case presently under consideration. In that case there were not two separate and distinct conditions or paragraphs in the policy providing for benefits of different amounts. The main question involved in 'that case was whether insanity was “sickness”, and, if so, whether the insured was entitled to any benefit at all in the absence of proof that she was confined to her bed. The amount of the benefit to which the insured was entitled, if any, was not involved in the case. In the case at bar, the only question involved is the amount, and, in order to determine *the*amount, we should, give effect to each of the clauses or conditions in the policy.

For the reasons assigned, I respectfully dissent.