137 Ky. 544 | Ky. Ct. App. | 1910
Opinion of the Court by
— Affirming.
The Fidelity & Casualty Company of New York issued to W. F. Cooper an accident policy, which, so far as material here, is as follows;
“The Fidelity & Casualty Company of New York in consideration of the premium and of the- state
“Art. 6. This policy does not cover any injury, fatal or nonfatal (1) received by the assured while or in consequence of being or having been under the influence of or affected by intoxicants; * * * (2) resulting directly or indirectly, wholly or partly from intoxicants. * * *
“Art. 8. Written notice of any accident on account of which a claim may be made must be given to the company as soon as may be reasonably possible, together with full particulars thereof, and the full name and address of the assured. Like notice of bodily injury or death on account of which a claim is to be made must be given to the company as soon as may be reasonably possible after the occurrence of the accident causing such bodily injury or. death. Affirmative proofs of death or of dismemberment or of loss of sight or of duration of disability must be filed with the company in writing within two months from the time of death or of dismemberment-or of loss of sight or the termination of the period of disability for which a claim is made. Claims not brought as required by this policy shall be forfeited to the company.”
The facts shown by the plaintiff's are these: Cooper was a passenger conductor running between Corbin, ICy., and Norton, Ya. He was in good health. On his arrival at Norton about 9:30 p. m. on the night of January 25, 1908, it was his duty to go immediately to the yard office and register his train. It was a dark rainy night. The turntable pit was near the track, and as he went from his train to the office he fell into the pit, which was about four leet deep. In the fall his chin and hands were badly cut and his chest and lungs were bruised. He lived at Corbin. On the next night he was restless and slept but little. The following morning he undertook to take his train back to Norton, but was unable to make the return trip, and was carried home sick. On reaching home he went to bed with violent pains in his chest and died of pneumonia three or four days later. Poultices were, applied to his chest to relieve the inflammation. There was a blue spot something below the right nipple about 2y2 or 3 inches in diameter. The doctor who treated him testified that he died of contusion pneumonia; the pneumonia setting up by reason of the injury to the lung from the hard fall against the bottom of the pit. There was no contrary medical testimony. Although two physicians treated him, only one testified at the trial. The other physician, though summoned as a witness, was not introduced by either
The first question made on the appeal is that the plaintiffs did not furnish the company proofs of loss as required by the policy. On this matter the facts are these: The insurance had been obtained at Corbin from W. C. Killinger, who represented the company there as a solicitor of insurance. He took the application and was the only agent of the company that the insured had any dealings with. Killinger forwarded the application to the home office, and the policy was issued there. After Cooper’s death, the beneficiaries applied to Killinger for the necessary blanks to make out their claim. He gave them what he called a “death certificate,” telling them to fill it out and bring it to him, and he would send it to the company. This they did, and returned the paper to Killinger, who sent it to the company. This paper stated the facts substantially as we have given them, but was not sworn to. After-wards Killinger told the widow to write a letter to the company stating, in effect, the same facts, and giving the names of the persons who knew the facts as to the accident, and the names of the doctors who had treated the assured, and the undertaker who had buried him. This she did; the paper being signed by her but not sworn to. The company made no objection to either of these papers because they were not sworn to, and Killinger told the bene
The policy in this case is practically the same as in Campbell v. Fidelity & Casualty Co., 109 Ky. 661, 60 S. W. 492, 22 Ky. Law Rep. 1295. The court gave the jury here the instructions approved by this court in that case on the question of intoxication, and we see no reason now for departing from the rule we then laid down. Insurance policies are prepared by the insurer. Accident policies, like others, where they are capable of two constructions, should receive that
In this ease the defendant introduced medical proof to the effect that a person of intemperate habits is more liable to die from pneumonia than a person of temperate habits. The defendant introduced one witness, and offered to prove by him that he had seen the .deceased drunk once something over three months before his death. He introduced another witness, and asked him the question if he knew the habits of the deceased as to drinking whisky, and becoming intoxicated frequently. The court refused to allow the witness to answer. The defendant’s counsel then assured the court that he had a number of witnesses on this line, and the court ruled that it was not competent to ask these questions or to make avowals as to what the witnesses would state, in view of the pleadings, to which ruling the defendant excepted. We cannot know what the witnesses would have stated as there is no avowal. The court should have allowed the defendant to introduce the witnesses and to make avowals as to what they would
There is no evidence that he had been addicted to the use of intoxicants, to such an extent as to affect in any way his constitution, or to make him more liable to die from pneumonia. According to the undisputed evidence in the record, he was in perfect health up to the fall, showing externally no signs of
It was averred in the petition that the insured received the injury, that this injury caused his death and that his death would not have resulted but for the injuries. If there was any defect in the petition —a question we do not decide — it was cured by the answer, the verdict, and judgment. ■ The jury, under the instructions of the court, found that the death of the deceased was caused by the injuries which he received in the fall. The' instruction on this queslion
The court properly admitted in evidence the statements of Cooper made to the first person who reached him just after he climbed out of the nit. His face and his hands were bleeding, and his statement then, as to how he had received the injuries a few seconds after the accident occurred, was properly admitted as part of the res gestae. Precisely this question was before the United States Supreme Court in Insurance Co. v. Mosley, 8 Wall. 408, 19 L. Ed. 437. There-the insured went downstairs, and when he came back was suffering, and said that he had fallen down the stairs. The evidence was held competent. The ruling in this case has been followed by us in several cases. Petrie v. Cartwright, 114 Ky. 103, 70 S. W. 297, 24 Ky. Law Rep. 903, 59 L. R. A. 720, 102 Am. St. Rep. 274; L. & N. R. R. Co. v. Molloy, 122 Ky. 219, 91 S. W. 685, 28 Ky. Law Rep. 1113; I. C. R. R. Co. v. Houchins, 125 Ky. 483, 101 S. W. 924, 31 Ky. Law Rep. 93, and cases cited.
The court did not err in allowing the wife to testify as to her husband’s suffering after he reached home, and his physical condition at that time.- The
' A number of minor matters in the admission of evidence are relied on in the brief; but it is unnecessary to notice them for the reason that they could have had no substantial effect upon the result. On the whole case, we think the defendant had a fair trial on the merits of its case, and no reason is shown for disturbing the judgment.
Judgment affirmed.