74 Colo. 515 | Colo. | 1924
delivered the opinion of the court.
Under an accident insurance policy, in the principal sum
Dismemberment by Actual Separation At or Above the Ankle Joint of * * * One Hand or one Foot, §2,500.00.”
In article 6 provision is made for additional benefits, without increase in the premium, if the same is paid annually in advance, to the extent, for the fifth year, of 50 per cent to be added to the respective sums payable as provided in the foregoing schedule of injuries. In the policy is a further provision that the accumulation provisions of article 6 shall take effect as though the policy was dated December 19, 1914, although its actual date was December 19, 1919.
The parties are in accord that plaintiff would be entitled to a recovery of §7,500, if these stated provisions of the policy govern and are the only ones bearing upon the issue. Unquestionably these three separate clauses or parts of the policy, taken together, constitute a direct, positive, unconditional promise to pay the sum of §7500, upon the happening of the specific injury, and another provision contains a promise to pay §75.00 for a necessary surgical operation, dismemberment of the foot. But the defendant contends that the effect and operation of the foregoing provisions are
The insurance policy is the contract of insurance of the parties. It is to be interpreted or construed the same as other contracts, and as a whole. It should have a reasonable, not a hypercritical or ingenious, construction intended or calculated to defeat the object for which it was made. Indemnity is the object sought by the insured, and the premiums provided for constitute the object which the insurer has in view. Another familiar rule is that a policy of insurance should be construed favorably to the insured in case of doubt or ambiguity. It has been well said by a learned judge that this rule should not be permitted to have
Applying these familiar rules of construction, which have been enforced consistently by this court, we find that the schedule of injuries clause, and the accumulation clauses of the agreement making the same take effect as though the policy had been dated December 19, 1914, constitute a direct, positive, unconditional promise by the insurer to pay the insured, in the contingency specified, the sum of §7,500, and another clause provides a fee of §75.00 surgeon’s fee for an operation on the foot.
Article 4, concerning optional indemnity, if it applies to this case — barring waiver or estoppel — seems to provide that such a recovery can be had only in event that the plaintiff exercises the option to take a fixed sum instead, or in lieu, of all other indemnity, except surgeon’s fees and hospital charges, and gives the proper notice to the insurer. Article 4 is in apparent conflict with the other provisions recited; the former being conditional and subject to the exercise of an option; the latter being absolute and unconditional.
First, we observe that article 4 is not applicable to the recovery sought here, as it contemplates, and includes, only those cases where recovery is sought, not merely for the sum fixed by the schedule of injuries and the accumulating provisions of the policy — which is the limit of recovery the plaintiff seeks — but also for the weekly indemnity in addition thereto, as provided for in another part of the policy, the right to which plaintiff disclaims. For this reason the plaintiff’s recovery of the fixed or gross sum should not be
But, if the rights of the parties are to be determined by construing articles 4, 6 and the schedule of injuries together, each qualifying or modifying the other, then it is apparent that we have a case where different parts or clauses of the same policy are inconsistent and in conflict. That being so, according to the usual rule followed in this state and by the courts generally, the construction favorable to the insured is adopted, even though a different construction favorable to the insurer might be reached. We are constrained to say, under the undisputed facts and as the result of our construction of these apparently conflicting provisions of the policy, that the plaintiff is entitled, without exercising the option given by article 4, to recover, as he did below, the fixed or gross sums provided for by the other clauses or articles of the policy for the injury which he sustained. In Pacific Mutual Life Ins. Co. v. Alsop, 191 Ind. 638, 134 N. E. 290, the court said that where language in one part of the policy favorable to the insured is in apparent conflict with language in another part favorable to the insurer, it merely creates an ambiguity which calls for the application of the general rule prevailing in this country, that when the meaning is doubtful or ambiguous, the contract must be given that construction which is most favorable to the insured.
The parties have not cited, and we have not found, any decision on such provisions as are used in this policy. They differ as to the reason for the absence of any adjudication in point; the plaintiff intimating that hitherto no insurance company has had the audacity to ask a court to relieve it from liability to pay the gross sum which the schedule of injuries declares shall be paid, the defendant suggesting that possibly no other company has in its policy similar provisions, and that no other insured has ever had the effrontery to claim the fixed sum without exercising the option given to him. Unquestionably it is competent for an in
The judgment is accordingly affirmed.
Mr. Chief Justice Teller and Mr. Justice Sheafor concur.