Gen. Accid't & Life Assur. Corp. v. Meredith

141 Ky. 92 | Ky. Ct. App. | 1910

Opinion of the Court by

Judge Hobson

Affirming.

The General A.ecident and Life Assurance corporation limited issued to Dr. W. E. Meredith an accident policy. He died while the policy was in force, and this' action was brought by his wife, Oora M. Meredith, to recover on the policy. Oh a trial of the case in the circuit court before a jury, there was a verdict in her favor for $500. The court entered judgment on the verdict, refusing the defendant a new trial, and it appeals.

The instructions of the court are not made a part of the record, and there were no material exceptions taken to the testimony introduced on the trial. Practically the only ground of complaint on the appeal is that the verdict of the jury is against the evidence. The facts of the case are these: Dr. Meredith lived at Scottsville, Kentucky, he and his brother conducting an infirmary there. On January 21, 1909, he and his wife, and several others, went to Nashville, Tennessee, stopping at the Maxwell House. In the afternoon he and his wife returned to the station about fifteen minutes before train time, and there the doctor remembered that lie had left his overcoat at the Maxwell House. He went after his overcoat. About the time the train he wished to take was due to start, lie came back on a street car, and having gotten off the street car ran down the pavement toward the station. Plis attention being fixed on the train, be failed to notice when be reached tbe end of tbe pavement, where there was a step down of about eight inches; and when be made this step, be received a jolt. His wife was with tbe conductor bolding tbe train for him. Pie walked slowly from this point to where bis wife was, was pale and suffering when be reached her. Pie continued to suffer after be got on tbe train, and when he reached Gallatin, be got off, took a hack, and went to a drug store where be got some medicine. After this be went on home. He suffered that night. The next morning be was a little better, and be made a call on a patient, and on tbe next day be made another call, but returning from that visit, he went to bed, and was not out of bed any more. He died on January 29. Tbe proof for tbe plaintiff on tbe trial showed that be died of intussusception, which is tbe slipping of one bowel into another. Plis brother who was on tbe train with him, and treated him from that time until be died, as well as two other physicians who were called into tbe case, testified that in their judgment, tbe jolt which Re received, when be stepped from tbe pavement caused tbe bowel to slip into tbe other; that this bad produced tbe pain which immediately followed, and caused him to be pale when be reached his wife, and also caused tbe tenderness and swelling of the bowels which soon thereafter set up; that at first tbe obstruction of tbe bowel was partial, but that later tbe obstruction became total, and after this they were unable to get any action on bis bowels, and be died from intussusception. Tbe plaintiff sustained her theory as to tbe causes of bis death by four physicians whom she introduced. Tbe defendant introduced four physicians, who did not see tbe deceased or know bis symptoms, who gave it as their opinion that bis death could not have been caused by intussusception. We cannot say that tbe jury were not warranted in believing tbe witnesses for tbe plaintiff. There was no contradictory evidence as to tbe facts they stated, and these facts went far to sustain tbe conclusion that they reached.

It is insisted, however, that tbe facts shown do not warrant tbe recovery bad under tbe policy. Tbe policy provides among other things that tbe company thereby insured the deceased as follows:

“TOTAL ACCIDENT DISABILITY. .

“(a) At the rate of fifty dollars per month, for a period not exceeding twenty-four consecutive months, against total loss of time resulting directly and independently of all other causes from bodily injuries effected through external, violent and accidental means, and which wholly and continuously from date of accident disable and prevent the assured from performing every duty pertaining to any business or occupation.

“PARTIAL DISABILITY.

“(b) Or, if such injuries shall wholly and continuously, from date of accident, disable and prevent the assured from performing one or more important daily duties pertaining to his occupation, or in event of lilte disability immediately following total loss of time, the company will pay the assured for the period of such partial disability, not exceeding six (6) consecutive months, at the rate of 40 per cent. (Twenty dollars) per month, provided the maximum period for which indemnity shall be paid under paragraphs A and B hereof, for any one injury, shall not exceed twenty-four consecutive months.

“SPECIFIC TOTAL LOSSES.

“(c) Or, if any one of the following specific total losses shall result solely from the injuries described in paragraph A within ninety days from date of accident, the company will pay, in lieu of any other indemnity

For Loss of

Life five hundred dollars, the principal ‘sum of this policy,

Both hands by severance at or above the wrist, the principal sum,

Both feet by severance at or above the ankle, the principal sum,

One hand and one foot by severance at or above the wrist or ankle, the principal sum,

Entire sight of both eyes, if irrevocably lost, the principal sum,

Either hand by severance at or above the wrist, one-half of the principal sum,

Either foot by severance at or above the ankle, one-half the principal sum,

Entire sight of one eye, if irrevocably lost, one-third of the principal sum.

“Indemnity for loss of life shall be payable to the beneficiary named in said schedule, if surviving, otherwise to the executors or administrators of the assured.”

It will be observed that in clause A regulating the amount to be paid for total accident disability, the company assumes responsibility only for “loss of time resulting .directly and independently of all other causes from bodily injuries effected through external violent and accidental means, and which wholly and continuously from date of accident disable and prevent the assured from performing every duty pertaining to any business or occupation.” It is insisted that the assured made the calls referred to after he was hurt and on both of these days was not wholly and continuously prevented from performing the duties pertaining to his business. If this was a suit to recover for his disability at the rate of fifty dollars a month, this clause would apply, and would preclude a recovery on the facts shown for total accident disability. But the recovery is not sought under this clause. The recovery is sought under clause C for loss of life $500. It is insisted that in this clause the liability of the company is limited to losses which “shall result solely from the injuries described in paragraph A within ninety days from date of accident,” and that when we look to paragraph A, the only injuries which are included in it are those which wholly and continuously from date of accident 'disable the assured from performing every duty pertaining to his occupation. But that is not the meaning of the policy. The losses specified in section C must occur “within ninety days from date of accident,” that is, the company is not liable for loss of life unless the man dies in ninety days after the accident. The injuries described in Paragraph A within the meaning of section C are “bodily injuries effected through external, violent.and accidental means.” Section C deals with the loss of life or a hand or foot or eyes. It sets out a liability which the company assumes in addition to the total accident disability set out in section A. The total accident disability cannot be recovered for under section A unless the disability is continuous from the date of the accident. But for the things set out in section C no disability is required. It is only required that the loss must occur within ninety days from the date of the accident. We had this question before us under a policy practically the same as this in Aetna Life Ins. Co. v. Bethel, 140 Ky. 608, and there held as above indicated. •If the deceased got a fall as above stated, when he stepped from the pavement, and this fall produced the injury to the bowel which caused his death, his life was lost from a bodily injury effected through external, violent and accidental means. (American Accident Co. v. Reigart, 94 Ky. 547; Omberg v. U. S. Mut. Accident Asso., 101 Ky. 303; Fidelity and Casualty Co. v. Cooper, 137 Ky. 544.)

, On the whole case we see no reason for disturbing the verdict of the jury.

Judgment affirmed.