157 N.E. 103 | Ind. Ct. App. | 1927
On September 27, 1924, appellee, being the holder of an accident policy issued by appellant insurance company, suffered an accidental injury which resulted, some months later, in the total loss of the sight of his right eye. The policy provided indemnity of $150 for the total loss of the sight of an eye, conditioned that the loss of sight should result "within ninety days from the date of the accident," and that written notice of the injury be given to the company "within twenty days after the accident causing such injury."
This action was commenced December 17, 1925, by appellee against appellant company to recover on the policy for the loss of an eye. Trial resulted in a verdict and judgment for appellee for $150, from which this appeal is prosecuted; errors assigned being the action of the court in overruling demurrer to the complaint and in overruling motion for new trial.
In the complaint, which sets out the policy as an exhibit, appellee avers that on September 27, 1924, he was accidentally struck in the right eye by the loose end of a baling wire, causing a serious injury to the eye and disabling him from performing any labor for a period of six weeks, that on February 1, 1925, he discovered that he had lost the sight of the eye, and on that day notified the company that he had received the injury, and that he would claim the indemnity. It is not averred in the complaint that the loss of the sight of *293 the eye resulted within ninety days from the date of the accidental injury, nor is it averred, directly or indirectly, that appellant had been given, or had received, any notice of the injury except the notice of February 1, 1925; and no facts are averred showing waiver of notice.
It is urged by appellant that no cause of action is stated for the reason that it is not averred that the company had been given notice of the injury within twenty days after the accident 1. causing the injury, and for the further reason that it is not averred that the loss of the sight of the eye resulted within ninety days from the date of the accident. The contention of appellant must prevail. Under the terms of the policy, appellee had no cause of action for the accidental injury of his eye unless the injury resulted in the loss of the sight of the eye within ninety days from the date of the accident; and even then, appellant was entitled to notice within twenty days after the accident, unless such notice was waived. Hatch v. UnitedStates Casualty Co. (1907),
However, if the complaint had been drawn so as to state a cause of action, the judgment would, nevertheless, have to be reversed, it not being sustained by sufficient evidence. There is no 2. evidence that appellee lost the sight of his eye within ninety days after the date of the accident; nor is there any evidence that notice of the injury was given to the company by appellee within twenty days after the accident, and there is no evidence of waiver of notice by the company.
Reversed. *294