23 Ind. App. 657 | Ind. Ct. App. | 1900
This action was brought upon an insurance policy issued by the appellant, a mutual accident association organized under the laws of Indiana, to the appellee. The poiicy was issued November 1, 1895. Appellee received the injury for which he sues June 21, '1896, while the policy was still in force. The complaint was in four paragraphs. The first, third, and fourth paragraphs alleged that written notice of appellee’s injury had been given to the association according to the terms of the policy. As it is not claimed that such written notice was ever given, these paragraphs are not discussed by appellant’s counsel. In the second paragraph it is alleged “that the plaintiff immediately after said injury, to wit, on the —day of June, 189G?, gave to the defendant at its home office in Indianapolis, Indiana, due notice, stating the name and a'ddress of the plaintiff, full particulars of the injury, and the name of the attending physician and an eye witness, and that said notice "was accepted by the defendant as sufficient notice and without objection.”
Appellant’s demurrer to each paragraph of complaint was overruled. It answered in four paragraphs, the first a general denial; the second, pleading the failure of appellee to give the notice required by his policy; the third, pleading want of notice and certain other conditions of the policy; the fourth, pleading a voluntary exposure to unnecessary danger, and setting out the provisions of the policy in reference thereto. The cause was put at issue by a reply in general denial.
A trial by jury resulted in a general verdict in favor of appellee for $250. "With the general verdict, answers to interrogatories were returned. Judgment was rendered in favor of appellee for the amount of the verdict.
Appellant assigns as errors the action of the court in over
In discussing the second paragraph of the complaint, appellant’s counsel refers to one of the provisions of the policy in suit, in the following language: “Notice of the injury shall be given, within ten days from the happening thereof and the notice of death within thirty days, in writing, to the secretary of the association at its home office in the city of Indianapolis, Indiana, giving the name and address of the member, the date and full particulars of injury or death, with the name of the attending physician and an eye witness; any failure to give such notice shall render void all claims for such injury or death under this certificate.” It is argued that this paragraph attempts to set up a parol notice, and “does not plead any facts from which the court can legally determine that the appellant was notified according to the contract.” Further; that the appellee could not plead a performance of the conditions of the policy and recover under proof of a waiver of performance; no waiver being pleaded. Without determining whether the facts pleaded notified appellant according to the terms of the contract, we are of the opinion that the language of Mitchell, J., speaking for the court, in Indiana Ins. Co. v. Capehart, 108 Ind. 270, is a sufficient answer to the objections named. The language referred to is found on page 276 of the volume and is as follows: “Stipulations which do not properly amount to conditions upon which the inception or obligation of the contract depends, and which merely require that something should be done by the assured in the way of furnishing proofs or information to the insurer regarding the circumstances and origin of the fire, the nature and extent of the loss, may be and are waived when other proofs or information in respect to the same matter are accepted or received without objection by an agent
Appellant next contends that the court erred in overruling its motion for judgment on the answers to interrogatories. In the fourth paragraph of the answer, it is averred that appellee voluntarily exposed himself to unnecessary danger, and that his injury was occasioned by reason of such voluntary exposure. The condition of the policy upon which this clause is based is as follows: “This certificate of insurance does not cover injuries nor death from any of the following causes: * * * voluntary exposure to unnecessary danger.” The fourteenth interrogatory and answer thereto is as follows: “Was Robert E. Springsteen when injured voluntarily riding a bicycle against a heavy wind, and, at the time he received his injuries, not looking ahead to see where he was going? Answer. Yes.” Interrogatory twenty-two is as follows: “Had Robert E. Springsteen been looking where he was going at the time he received his injuries would lie not have discovered the wagon into which he ran in ample time to have turned out and avoided
In City of Ft. Wayne v. Patterson, 3 Ind. App. 34, the rule is thus stated: “If, taking all the special findings together, and adding to them any other fact that might have been proved under the issues, an irreconcilable conflict with the general verdict can be avoided, the answers to interrogatories will not be allowed to control.” There is no irreconcilable conflict in the facts found and the general verdict, and the court did not err in overruling appellant’s motion for judgment.
Under the third specification of the assignment of errors counsel for appellant first discusses the twelfth reason set out in the motion for a new trial, viz.: That “the court erred in admitting in evidence the testimony of the plaintiff as to a conversation had with one Benjamin II. Prather, wherein it was claimed that the plaintiff gave defendant notice by parol of his alleged injuries.” Prather was the secretary of the defendant company. Appellant’s proposition is that a written notice of the injury being provided for in the policy, proof of said notice was incompetent. The second paragraph of the complaint sufficiently averred a
Counsel’for appellant insists, under proper assignments in the motion for a new trial, that the court erred in giving of its own motion certain instructions to the jury, and in refusing to give certain instructions requested by appellant. The seventh instruction given by the court undertakes to define total disability. The appellant in effect requested the court to instruct the jury that, in order to recover, appellee’s injury must have been such as wholly to disable him from performing any and every kind of business pertaining to his occupation as manager of the When Clothing Store. The court refused this instruction, and instructed that appellee could recover if he was disabled to the extent that he cou.d not do any and all kinds of business pertaining to his occupation. Appellee’s occupation, in the policy, was described as manager of the W hen Clothing Store. The condition of the policy in question is as follows: “No claims of any character shall accrue upon this contract unless it arises from physical bodily injury, through external, violent and accidental means, while this contract is in force, and then only when the injury shall, independently of all other causes, immediately and wholly disable the insured from perforan ing any and every kind of business pertaining to his occupation as above stated.” The expressions of the courts sá to what constitutes total disability are not in harmony.
In Ford v. United States, etc., Co., 148 Mass. 153, 19 N. E. 169, 1 L. R. A. 700, the insured was described in the policy as having a twofold occupation, that of leather cutter and merchant. The court held that in order to recover a weekly indemnity, he must be wholly disabled from the prosecution of any and every kind of business pertaining to 'fhe occupation under which he was insured, that is, the twofold occupation of leather cutter and merchant. The policy among other things provided that “if the insured shall sustain bodily injuries * * * which
In Hutchinson v. Supreme Tent, etc., 68 Hun 355, 22 N. Y. Supp. 801, the constitution of the society in which the plaintiff held a certificate of membership provided that: “A total and permanent disability to perform or direct any kind of labor or business, or upon reaching the age of seventy years, shall entitle a member holding a certificate of endowment, so disabled or aged, to the payment of onehálf of the endowment to which he would be entitled at death.” The court.said: “Here we have a definition or a description of the disability that would entitle the plaintiff to recover. It is not only permanent, but total, so as to be unable to perform or direct any kind of labor or business. It is not limited to the business in which the plaintiff was engaged at the time of his injury, but it is in the broadest language possible to use, a total and permanent disability To perform or direct any kind of labor or business.’ A total disability is ordinarily one of fact, and is for the jury. It must be determined from the facts and circumstances disclosed in each case. That which would be total disability in one case might not be in another. The loss of a hand by a lawyer might interfere but slightly in the transaction of his business, or in the performance of his work. Whilst to a man who had learned a particular trade, by which he had always earned his living, and was entirely ignorant of all other trades or business, it might prove to be a much more serious disability. Ordinarily, the loss of the fingers of the hand does not constitute total disability from the performance of any kind of labor or business.”.
In Neill v. Order of United Friends, 28 N. Y. Supp. 928, it was held that under a policy of a benefit society providing that, should a member become permanently dis
Lyon v. Railway, etc., Co., 46 Iowa 631, was a suit upon an accident policy, in which it was stipulated that the company would indemnify the assured for loss of time while totally disabled. ITe can not recover except upon proof of total disability. The trial court gave the following instructions: “(4.) The policy provides that the defendant will be entitled to recover for injuries resulting from accidents only while the insured was totally disabled, and prevented from the transaction of all kinds of business. But this language must be construed in a practical sense, and means inability to follow any occupation, business or pursuit in the usual way. Though he may have been able to do some parts of the accustomed work thereof, he may yet recover so long as he cannot to some extent do all parts, and engage in all such employments. The fact that he may do some light parts of the work, when he cannot engage in the work itself, to any practical extent, will not prevent a recovery. (5.) The words ‘all kinds of business’ should receive a practical construction, and with reference to the party insured, and, if he w7as qualified to engage in any business which he could do under the injury, then it would be his duty under the contract so to do; but the fact that there may be some business or occupation in which he could engage, would not.
In Saveland v. Fidelity, etc., Co., 67 Wis. 171, 30 N. W. 237, the plaintiff who sued upon a policy insuring against accidents was by occupation a merchant. The policy provided for indemnity for injuries which should totally disable ■him from prosecuting any and every kind of business pertaining to his occupation for such period of continuance, the total disability not exceeding the amount stipulated nor the money value of his time during the period of continuance of total disability, not exceeding twenty-six weeks. The complaint alleged that while the plaintiff was employed in his regular business, and his earnings at the time were $100 per week, he was accidentally hit with great force by a stick of wood thrown by some party, inflicting the injury for which he sued, and was thereby wholly disabled and unable
In Knapp v. Accident Assn., 53 Hun 84, 6 N. Y. Supp. 57, the policy was against injuries by means of which the insured should be immediately and wholly disabled, and prevented from the prosecution of any and every kind of business pertaining to the occupation in which he received membership. The insured was described in the policy as retired. He testified at the time he made his application for insurance that he had no occupation except to amuse himself; that his income was derived from investments; that he had a shop at his house where he spent his leisure moments; that he was a stockholder and director of a wagon manufacturing company, and at times used some of the machinery of the wagon shops in connection with his amusement. In operating a buzz saw at the wagon shop, he received the injury for which he sought to recover indemnity. The wound was severe and painful; the hand was required to be carried in a sling; plaintiff was deprived of its use to a greater or less extent during the period of some
In Turner v. Fidelity, etc., Co., 112 Mich. 425, 70 N. W. 898, the policy provided for the payment of indemnity for injuries which should wholly disable the insured from prosecuting any and every kind of business pertaining to his occupation. The court held that the insured could recover on proof that he was in the real estate business and that he went to his office every day for a short time but was unable to do any kind of work. In the opinion, the court said: “At least, it was a question for the jury to determine, and the court submitted it in these words: ‘I think that a fair interpretation of that clause is, not that he must be so disabled as to prevent him from doing anything pertaining to the business, but that he must be wholly disabled, so as to prevent him from doing any and every kind of business pertaining to his occupation; not that he might do some one thing in regard to it, but that he must be wholly disabled, so as to prevent him from doing any and every kind of business pertaining to that occupation. I submit that to you as a question of fact to find whether he was so disabled, and for what length of time, under this policy.’ ”
In Lobdill v. Laboring Men’s, etc., Assn., 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, the court said': “There are a few propositions applicable to the construction of the policy under consideration, which, under the evidence are decisive of this case. The first is that total disability does not mean absolute physical inability on part of the insured to transact any kind of business pertaining to his occupation.
In Young v. Travelers Ins. Co., 80 Me. 244, the policy provided that if the insured shall sustain bodily injuries, which shall wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he is insured, certain indemnity should be paid him. The court held that in order to entitle the insured to recover that indemnity, he was not required to prove that his injury disabled him to such an extent that
In Wolcott v. United, etc., Assn., 8 N. Y. Supp. 263, in an action on a policy providing indemnity during total disability, a physician holding the policy was held to be entitled to pay for time when he was confined to his bed by an accident, though during- that time he gave occasional examinations, and prescribed for patients who came to his bed-side, and reached for medicines for them without leaving his bed. The court said: “Total disability must, £>f the necessity of the case, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged. One can readily understand how a person who labors with his hands would be totally disabled only when he cannot labor at all. But the same rule would not apply to the case of a professional man, whose duties require the activity of the brain, and which is not necessarily impaired by serious physical injury. If a person engaged in the general practice of medicine and surgery is unable to go about his business, enter his office, and make calls upon any of his patients, but is confined to the bed, as 'in this instance, and enabled only to exercise his mind on occasional applications -to him for advice, he may be said to be totally disabled, within the meaning of the provisions of this policy.”
In Hohn v. Inter-State Casualty Co., 115 Mich. 79, 72 N. W. 1105, the policy contained this provision: “If such injuries, * * *•, wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, the company will pay” etc. The insured, a barber, after receiving the injury on account of which he sued, went to his shop and attempted to do some work, but he suffered such pain that he fainted away and was sent home in a hack. During the week he was some
Bliss on Life Insurance, at page 723, §403, cited by appellant, gives the interpretation of numerous decisions as to what is being disabled from usual employment without discussing them.
May on Insurance, §522, cited by appellant, says, citing Hooper v. Accident, etc., Assn., 5 H. & N. 546, that “wholly disabled” is equivalent to “quite disabled” and a man is so unless he can do what he is called upon to do in the ordinary course of his business. It is not the same thing as to do any part of his business, though the insured “may do certain parts of his accustomed work, and engage in some of his usual employments, he may yet recover, so long as he cannot to some extent do all parts, and engage in all such employments,” citing several cases in support of said proposition.
Joyce on Insurance, at §3031, in referring to certain cases most of which are hereinbefore set out, says: “Some of the oases are certainly open to criticism, in that the object and purposes of the insurance contract are ignored and the rules of construction strained. The general purpose of such clauses is to furnish an indemnity to assured for the loss of time by reason of accident or injury which prevents him from prosecuting his business, aiid it would seem that this ought to refer to his inability to- perform substantially the duties which are necessary to be done in the business to which the contract refers, an absolute physical inability ought not to be meant in all cases, for the injury might be of such a character as that common care and prudence would preclude the prosecution of said business.”
We make no attempt to harmonize the decisions cited. But in view of the liberal rule of construction, which holds that, where the language used in a policy of insurance -is capable of two constructions, the one most favorable to
We have read the instructions requested by appellant and refused by the court. So far as they state the law, they were substantially covered by those given. The question of whether appellee voluntarily exposed himself to unnecessary danger was properly submitted under an aptly worded instruction to the jury, as was the question whether appellee gave a notice of his injury to the company which was accepted and acted upon by it. The evidence shows that the claim of appellee was not rejected for want of notice, but upon the ground that his disability was not total within the meaning of the policy.
That appellee was guilty of negligence contributing to his injury, there can be no question, but the jury found that he had not knowledge of the danger. This court, in Conboy v. Railway, etc., Assn., 17 Ind. App. 62, by Black, L, said: “Giving the words definitions, and the language a meaning most unfavorable to the insurer and most favorable to the insured, the exception may be construed as contemplating knowledge on the part of the insured of the existence of the danger or peril, and an encountering of it by him willingly. We think that the facts alleged do not show that the death of the insured was within the exception. They indicate an accidental death from a suddenly encountered' danger. It is not shown that the insured consciously and intentionally exposed himself to danger, or that he presumed or dared to run a risk of peril. It does not' follow because an act was voluntary, that the exposure was voluntary.” And in Keene v. Accident Assn., 161 Mass. 149, 36 N. E. 891, 892, it was said: “A voluntary exposure to necessary danger is not forbidden, nor an involuntary exposure to unnecessary danger. The policy recognizes that
We have carefully examined the record, passed upon the controlling questions presented, and find no error for which the judgment should be reversed.
Judgment affirmed.
