The question is not whether plaintiff is under "contractual obligation" (cf. Tittsworth v. Ohio Nat. L. Ins. Co. 6 Tenn. App. 206) to submit to treatment. Rather and only the problem is whether the condition of the policy (actual impossibility of pursuit of gainful employment) is fulfilled so long as the insured's unreasonable refusal of treatment, rather than his ailment, is made to appear the one present obstacle to gainful occupation. No disability can entitle plaintiff to recovery unless, within the meaning *Page 228 of the policy declaration, it "continuously renders it impossible for the insured to follow a gainful employment."
"Breach of contract" arises only from wrongful conduct. "The promisor does not necessarily commit a breach of contract if he fails to perform his promise. * * * non-performance of a contract, if justified, is not a breach. Justification may be due to the fact that * * * a duty of immediate performance has not arisen because some condition precedent has not occurred." Restatement, Contracts, § 312, Comment a.
Clearly, one claiming a breach of contract has no case where, as here, the condition precedent to the wanted performance rests wholly in his own omission of duty.
It is always easy to worst an insurer upon the ground that its policy must be strictly construed against it if judges are at liberty first and arbitrarily to create doubt and then to resolve it adversely to the insurer by arbitrary construction. I suggest that, inadvertently, just that course is being followed here. What is uncertain or equivocal in the phrase "continuously renders it impossible for the insured to follow a gainful employment"? The supposed vacuity, without which this decision cannot stand, is not found in the language nor in its application to facts. It is found only by fancy in a hypothetical provision which might have been used, but was not, affirmatively requiring the insured to resort to cheap, painless, and efficacious cures as needed.
Such silences concerning matters already covered by contractual language, or left for decision by applicable law, are not properly resorted to for the creation of artificial ambiguities.
No contract concerning employment for a definite term says anything about the employe's duty to minimize damage in case of breach. Yet if an employe sues for damage for wrongful discharge and is met by proof that immediately on discharge he was offered a similar job as good or better from all standpoints, wages included, he could not recover for the simple reason that, having refused the new position, his whole damage was self-inflicted. *Page 229
In similar fashion, the duty of an employer to furnish his employes with reasonably safe tools and place to work is no creation of the contract. It is imposed by law. James Quirk Milling Co. v. M. St. L. R. Co. 98 Minn. 22, 25,107 N.W. 742. Silence of the contract does not negative the duty and so is irrelevant to consideration. So also in compensation cases, where we hold the relationship contractual.
How is that "continuously impossible" which one by slight effort may make not only easily possible but wholly practicable and praiseworthy? This is just such a case if the answer is true.2
To the knowledge of all of us, many a workman in office, factory, or on the farm has suffered hernia in youth or early adult life. Yet by the purchase and wearing of a brace he has removed all ground for even suspicion of resulting disability as here defined. By refusing aid from oculist and spectacles, we who write these decisions could impose upon ourselves disability for gainful employment. No one would suggest that there was resulting and continuous hindrance from carrying on, or that we would be so disabled as, its other requirements satisfied, to entitle us to quit work and have the benefit of any statute for our retirement on pay. We would meet the deserved derision of bar and laymen alike if, claiming such benefits, we asserted the right because the statute was "silent" about our duty to resort to any available and reasonable means of exchanging our self-imposed uselessness for our former state of utility, whatever it may have been. *Page 230
The analogy of the duty to minimize damages, correctly drawn by appellant from tort, contract, and compensation law, is, I think, compelling. Compelling because in all legal relations the law imposes on the injured person a duty not unreasonably to increase or continue his own hurt. We apply that rule for the benefit of ordinary contractors and the most guilty of tortfeasors. Why should we except defendant simply because its contract happens to be an insurance policy?
Without expressing opinion as to a case for surgery, I insist that the answer here presents a question of fact. That issue is made in substance by the averment that the disability is not total because it can be removed by slight and wholly reasonable effort by plaintiff himself. The gist of the allegation is that the continuance of disability is unreasonably and inexcusably self-imposed and so beyond the coverage. Evidence may make the truth appear otherwise, but, for the present, the case being here on demurrer, we must postulate truth for defendant's claim.
Maresh v. Peoria L. Ins. Co. 133 Kan. 191, 299 P. 934, 937, I beg leave to submit, is not in point. There a young farmer had been horribly injured. The jury found total and permanent disability. The defense had requested an instruction that it was the duty of plaintiff to exercise every effort to aid recovery. The facts offer nothing to suggest that he had not done so. But the court issued this dictum [133 Kan. 197]:
"Defendant requested an instruction to the effect it was the duty of plaintiff to exercise every reasonable effort to aid recovery. The contract does not so provide. No doubt it is the moral duty of every person to make the most of himself under even the most adverse circumstances; but the issue in this case was whether plaintiff's disability was permanent."
Aside from the fact that in tort and contract cases the duty to minimize damages is legal as well as moral, there was not propounded to the supreme court of Kansas the present question whether a disability is permanent which will cease to be so *Page 231 upon a very slight effort, inexpensive and wholly reasonable, by the victim.
I must decline participation in a holding that a duty imposed upon one not only in favor of a party contracting with him but also a wrongdoer who has done him grievous harm disappears when and because the other contracting party is an insurer. The duty so imposed, even in contract cases, is a creation of law, not contract. How, then, can we say, as we do here, that the duty is absent simply because the contract, explicit enough otherwise, is "silent" about resulting legal duty?
An important fact of modern life is the advance made in the healing art. Its principal goal, next to saving and prolonging life, is to prevent and remove disability. If this answer, which we hold legally insufficient, is factually sound (and we must so assume), we say simply that we as judges will nullify, in the field of insurance, one of the great accomplishments of modern medicine. Too esoteric for me is the legalistic refusal of adjustment to a fact of progress in medicine which is the real, though undeclared, thesis of this decision.
This is not a case of duty to minimize damages. It is even more plain than that. It is a case wherein, on the answer, plaintiff is attempting to impose liability on defendant by his own wrongful act. (If self-inflicted disability is immoral, how is it that self-inflicted continuance is morally or legally blameless?) It is one where, on his own wrongful omission alone, he is invoking a contractual condition not otherwise fulfilled. Plaintiff's disability is made to appear the result of his own refusal to perform a duty of reasonable care and so to act as not wrongfully to impair concurrent rights of others. Those duties rest upon all at all times, as appears from the tort, general contract, and compensation cases. They are in point and controlling because they show plaintiff's duty as matter of law, not contract. And this contract relieved plaintiff of no duty otherwise his.
The norm of reasonable conduct is harsh enough to satisfy the demands of justice as against unfaithful contractor and wilful *Page 232 tortfeasor. Why, then, is it not severe enough to answer the call of justice on an insurer? Why as against him alone must one more severe be formulated? Why is his case alone not susceptible of decision on the standard otherwise of universal application?
The only burden put upon the insured by the adoption of the minority view would be one common to all plaintiffs — that of meeting, by evidence if need be, new matter in defense. Such new matter, in my opinion, would seldom be decisive as matter of law. The standard of reasonableness will enable the verdict to settle it for most cases.
From the foregoing it can probably be inferred that, in my view, it was error to sustain the demurrer.
2 Paragraph VIII of the answer alleges that:
"* * * a method and manner of treatment therefor [for diabetes] consisting of the regulation of diet and use of insulin has been well known to the medical profession generally and in the locality of plaintiff's residence; that said treatment removes any disability which could or would result from said condition; that said treatment does not subject the patient to any surgical operations, and is neither dangerous, nor painful, nor detrimental to the patient; that said treatment is not expensive to patients paying therefor and is available without charge or expense to patients in the locality of plaintiff's residence who are in need of said treatment but financially unable to pay the usual cost of the same."