Appeal from the Twentieth Judicial Circuit, St. Clair County
Branch; the Hon. FRANCIS P. HANAGAN, Judge, presiding Judgment
Defendant, Pennsylvania Life Insurance Company, appeals from a jury verdict and judgment of the Circuit Court of St. Clair County in favor of Keith G. Snelson, plaintiff, in a suit to recover total disability benefits under an accident and health policy.
Plaintiff was 54 years of age at the time of trial. He attended school up to the seventh grade, having failed one year. He had no further education of any kind. He went to work at the age of fourteen or fifteen, doing odd jobs for his father, who was a brick contractor. He became a union bricklayer about three years later and bricklaying has been his sole source of income since then, except for a period during the war when he was an insulator for Lubrite Oil Refining Company.
On or about April 1, 1960, defendant had issued to plaintiff as the named insured, an accident and health insurance policy containing what is known as a "total disability clause." The material portions of the policy provide as follows:
"Pennsylvania Life Insurance Co. does hereby insure the person named in the Policy Schedule (Keith G. Snelson), subject to the terms, provisions, conditions and exceptions of this policy against loss of . . . time resulting directly and independently of all other causes from accidental bodily injury sustained while this policy is in force. . . .
"If `such injury' does not result in any of the specific losses named in Part One but causes continuous total disability and total loss of time within twenty days from the date of the accident and requires regular and personal attendance by a licensed physician, surgeon, osteopath or chiropractor, other than the Insured, the Company will pay at the rate of the Monthly Benefit stated in the Policy Schedule ($200 per month) for one day or more from the first medical treatment so long as the Insured lives and is so disabled, suffers such loss of time and requires such personal attendance."
Following an accident on June 7, 1960, plaintiff made a claim under the insurance policy for total disability benefits. On the basis of such claim and medical information supplied by the plaintiff's physicians, he was paid the total disability benefit of $200 per month for eleven months. Thereafter, as a result of medical reports submitted by plaintiff's physician and the report of an examination on May 16, 1961, by Dr. Donald O. Burst, on behalf of the insurance company, defendant discontinued the total disability payments to plaintiff.
The plaintiff testified that he was injured in June of 1960; that after treatment by medication, a surgical corset and hot baths, an operation on his back was performed in December of 1960; that he did not get any better after the operation; that six months after the operation he had pain in his back and legs; that this pain has not changed except to get worse as he gets older; that his back hurts him constantly; that his legs ache; that he has spasms and his legs pull; that the doctor gives him medicine to take care of the aching; that he takes it sometimes two or three times a day; that the medicine numbs him, takes the pain away to a certain degree and makes him drowsy.
He further testified that he was able to drive an automobile a short distance, to the store and back; that he visits friends once in a while; that he watches television; that he owns two automobiles, that his wife works; that there is one car available to him at all times and when he needs that car he uses it; that he has three used cars other than the ones he and his wife use which are located in his yard; that he is able to dress and undress himself; that he lies in a hammock and rests sometimes during the day; that he has gone to the Social Security office and to the "unemployment place" to try to get a job but was told that "he had guys in better shape than he was and that there wasn't any work for him and not to come back."
Charlotte Snelson, wife of the plaintiff testified that she does most of the work around the house, the heavy work being done by some young kids who come in; that she mows the lawn, paints, washes windows, and shovels snow; that the plaintiff shuffles and limps when he walks; that he has a very hard time sitting down or getting up; that he complains to her about pain; that he takes medication two or three times a day; that his sleeping is very irregular; that the only thing he does around the house to help her is to burn trash.
Loretta Mertz, a neighbor and friend of the Snelson family, testified that she and the Snelsons have been neighbors for several years; that she has observed Mr. Snelson around the neighborhood and he appears to be a drunkard from the way he walks and he doesn't seem to be like a normal man; when he walks, he shuffles, and walks in a stooped position; when he gets up from a chair he grabs his back as if in pain and moans; when he stoops, it seems he has a hard time getting up and when he does get up, he holds onto things and grabs his back.
She further testified that she has observed Mr. Snelson from her home when he was not in a position to know that she was looking at him; that when she sees him, he is always in the same position, and when he walks, he grabs his back and walks stooped and shuffles; that he is the same morning, noon and night; that this condition has stayed the same over the past two years; that Mrs. Snelson does the painting, washing windows and shoveling of snow.
The medical evidence offered on behalf of the plaintiff consisted solely of the testimony of Dr. Bart Cole. He testified concerning his examination of the X rays, the performance of the laminectomy operation, his subsequent treatment of plaintiff following the operation, and the continuous course of treatment up to May 12, 1964, at which time the plaintiff still had objective signs of a physical disorder. He testified as to a hunchback or kyphosis and a list or scoliosis. He prescribed pain killing drugs for the plaintiff throughout the course of his treatment. He further testified that in his opinion the plaintiff had suffered permanent damage to the nerve roots of L-4, L-5 and S-1; that this damage could cause a dull, constant pain which would increase upon movement. He stated that plaintiff was no longer able to do the work of a bricklayer but that "he could do sedentary things, seated at a particular job, a job where he pushes buttons, something like that."
On May 16, 1961, at defendant's request, plaintiff was examined by Dr. Donald O. Burst, an orthopedic specialist in St. Louis, Missouri, who submitted his report of examination to defendant. In summary, Dr. Burst stated that subjectively the patient complains of some headaches with some limitation in the lumbar area; that he also complains of some pain in the left leg, posteriorly, in the thigh and knee and upper portion of the calf. He found, objectively, a well-healed, nontender scar in the midline of the low back about 5 1/2" in length with some measureable difference in the circumference of the two thighs, with the right thigh measuring 1/2" less than the left. He reported that the patient stated that his pains have always been on the left side and not on the right, following his injury of June 1960.
Dr. Burst, in his report, went on to say: "However, assuming all these things occurred as stated, it is now my impression and opinion that this man will be able to return to full ...