Garvey v. Phœnix Preferred Accident Insurance Co. of Detroit

108 N.Y.S. 186 | N.Y. App. Div. | 1908

Spring, J.:

On the 5th day of April, 1904, the Phcenix Preferred Accident Association of Detroit, Michigan, isstied a policy to the plaintiff insuring him against death or disability, • the result of accidental injury; and'subsequently the appellant assumed the-burden of this policy with others.

The plaintiff was a yard conductor in the employ of the Mew York Central Railroad Company, and the risk described in the policy issued to him was extra hazardous and cost him yearly $36.73, payable quarterly in advance. By the policy, in case of his death as the result of accidental injury, the company agreed to pay $2,000 ; and in case of disability from the same cause $15 a week during the continuance of the disability. The policy contained this provision : “In the evfent of injuries' * * ■ * or disability resulting directly of indirectly, accidentally or otherwise from * * * poison or infection ” the company’s liability was limited to one-tenth of the amount otherwise designated in the contract, and to twenty-six weeks’ disability.

The plaintiff'on the 30th day of April, 19Q6, while walking up an incline leading to the platform of a freight house slipped and fell, seriously injuring his left leg below the - knee, and the disability continued until August seventeenth following. The physician who attended him described the injury and its history as follows: “ I was called in to examine Mr. Garvey in regard to this accident on or. about April 30th or May 1st last. I found a lacerated wound about the middle third tibia about two inches long. It was lacerated as was also the periosteum, covering of the bone, caused by striking the leg against an old plank of some kind. The cause of the injury was the accident, and that resulted in the disability from about the 30th of April along to September 1st. I don’t just remember the date. He was not able to work during- that time. I should consider it a total disability. The cause of the total disability when I first examined it was not poison or infection. The results of the injury were the lacerations, of course,; of the tissues and the covering of the bone, the periosteum-, of course a great deal of inflammation as bone injuries usually do. I was called and dressed. the wound and in abqut a- week or ten' days, possibly less,, we began to get symptoms of septic or pyemic symptoms, which are about the same, very decided symptoms and swelling of the leg,' and that continued for some little time, and the wound was a -long time healing, as those wounds usually.are.” Again, he testified that the.blood poisoning was “ the. natural consequence of the injury; ” that it was not an infectious one directly or indirectly, and the disability was not “caused-by poison or infection.” In describing further the injury he said: •“ The serious part was the condition of the bone, the abrasion of the bone. I would not say that when a bone is injured the infection -is pretty hard-to prevent. Sometimes. . The injury to the bone was not of an infectioiis character. It was the infections condition that gave- him the serious and prolonged. ■ disability. He would have got out sooner if it had not been for the infection. The prolonged disability- of plaintiff was caused and produced by the infectious condition /of the woimd. I believe I so stated -to the company in my letter. I don’t remember.” He further testified that, the injury to the bone caused the infectious condition, which occurred in about ten days, and which was the natural and expected result of the accident. •

The defendant claims that it is not liable because of thehlood poisoning or infection, It is apparent that the condition described by the physician is the consequence reasonably to be expected from the-injuries sustained by the plaintiff. - The original- disability was within the terms of the policy and whatever, naturally, and in theordinary course of events, followed the injury was. fairly within the scope of the policy. The “injuries * * * or disability ” referred to in the clause quoted relate to the time of the accident. They did not “result” from the poison or infection, if such-existed, but the latter resulted from the injuries. The company was not expecting by this provision t¿ be exempted from- liability for what might occur in the progress toward recovering from, the Avound or what might normally arrest its improvement. Conditions which inevitably or ordinarily are the effect of a disability covered by the policy are also within its compass, otherwise the contract is a sham.

To illustrate the distinction: In Bacon v. U. S. M. A. Assn. (123 N. Y. 304) the insurer was not liable for death or disability resulting from “ bodily infirmities or disease,” and only when the injury was “the proximate or sole cause of the disability or death.” The assured came in contact with a putrid or diseased animal and contracted a malignant pustule, which was an infectious malady, causing his death, and the court held no recovery could be had. The disease there ivas the disability and there was no other injury, and not even an abrasion of the skin was required to produce the infection.

Authorities are not very helpful in construing the clause of this policy for each case depends upon the particular provisions of the contract considered. Bailey v. Interstate Casualty Co. (8 App. Div. 127; affd., 158 N. Y. 723); Martin v. Equitable Accident Assn. (61 Hun, 467); Delaney v. Modern Accident Club (121 Iowa, 528), bear someAvhat upon the question.

The general rule for guidance in the interpretation of contracts of this kind is stated in Paul v. Travelers' Ins. Co. (112 N. Y. 472, 479): “ Policies of insurance are to be liberally construed, and, as in all contracts, conditions are to be construed strictly against those for whose benefit they are reserved. * * * In their construction, their words should be taken in that sense, to which the aj>parent object and intention of the parties limit them, and which is to be gathered from the surrounding clauses and from all the parts of the instrument.”

From the jumble contained in the clause in its- entirety, in the policy before us, from which the extract has been taken, I think the construction adopted is just and reasonable.

The judgment should be affirmed, with costs.

All concurred.

Judgment of Monroe County Court and of Municipal Court of the city of Kochester affirmed, Avith gosts. • '