46 Iowa 631 | Iowa | 1877
“ 5. The words, “ all kinds of business ” should receive a practical construction and with reference to the party insured, and if he was 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 prevent a recovery unless it was an occupation or business which he was qualified to engage in as an occupation, and transact in the usual way.”
These instructions are, it seems to us, clearly erroneous. The parties must be bound by the terms of their contract. The contract of insurance provides that the defendant will indemnify the assured against loss of time while totally disabled and prevented from the transaction of all kinds of business, solely by reason of bodily injuries effected through outward and accidental violence. The fourth instruction construes the contract to mean something entirely different. The jury are directed that plaintiff may recover though he may be able to do some parts of the accustomed work pertaining to his business, so long as he cannot, to some extent, do all parts and engage in all the employments thereof. Almost total soundness and ability, instead of total disability, is made the condition of plaintiff’s right to recover, and of defendant’s liability. The plaintiff is a carpenter. If he was simply disabled from going upon a four story building to put on the roof, and could do everything else pertaining to his trade, he would under this instruction be entitled to recover fifteen dollars a
' The fifth instruction is equally erroneous. The contract of insurance binds defendant to indemnify plaintiff for loss of time while totally disabled, and prevented from the transac-tion of all kinds of business. The court tells the jury that this does not mean what it plainly says, but that defendant will indemnify plaintiff for loss of time while disabled, and {prevented from the transaction of any business in which he .was qualified to engage. Under this instruction the defendant’s liability is governed by the plaintiff’s versatility. If the plaintiff is skilled in but one business and can pursue but one employment, and is disabled from pursuing that, he may u-ecover, but if he has greater skill and can turn his attention to other pursuits, he cannot recover unless he is disabled from engaging in any employment for which he is qualified. The parties have not incorporated any such condition in the con-.tract. There is no reason nor justification for wresting from .the language employed its natural signification, and placing .upon it a construction which substitutes for the contract which •the parties have made one of entirely different signification, •and one imposing upon the defendant a greatly enlarged liability. The language of the parties is plain, unambiguous and ■needs no construction. It provides that defendant shall be liable for loss occasioned by being totally disabled from all kinds of business. Effect should be given to this language. •It should be understood to mean what it says. It cannot be claimed that it means that defendant will indemnify on account of loss sustained by being.partially disabled from some kinds of business: And yet this is the construction which the .two instructions we have been considering place upon it.
' This instruction misconceives the true meaning of the policy. The policy, after stating the conditions of defendant’s liability, employs the following language: “Provided that in the event of bodily injury or death insured against by reason of which a claim for loss may be made under this contract, immediate notice shall be given to the company at Hartford, Connecticut.” This proviso introduces a further condition upon which defendant’s liability depends. It is equivalent to saying, defendant shall be liable under the circumstances foregoing upon condition that immediate notice of the claim is given to the company, at Hartford. And this is the same, in import, as saying that the company shall not be liable, if such notice is not given.
In May on Insurance, section 462, it is said, if the notice be required to be forthwith, or as soon as possible, or immediately, it will meet the requirement if given with due dili
Y. The plaintiff offered to prove the contents of two letters written by him to C. E. Willard, defendant’s secretary. The defendant objected on the ground that no 'sufficient notice to produce the letters had been given, the notice to produce, given to defendant’s attorneys at Ottumwa, Iowa, on the llth day of March, 1876, only six days before the trial, being insufficient, as the letter was in the possession of the company at Hartford, Connecticut. The court sustained this objection, but admitted the letters on the ground that they were themselves in the, nature of a notice, and no notice to produce them was necessary. Without determining whether the letters w'ere
The foregoing review disposes of all the material points involved in the appeal. Eor the errors considered the judgment must be
Reversed.