80 P. 1020 | Kan. | 1905
Lead Opinion
The opinion of the court was delivered by
The contract for indemnity, entered into between the Order of United Commercial Travelers and the insured, provided that the former should be liable only in the event that a member sustained injury by violent and accidental means
There was testimony tending to show that plaintiff was not feeling well, or was “under the weather,” a part of this time, but to say that he was wholly and continuously disabled and prevented from prosecuting any and every kind of business pertaining to his occupation would be an unwarranted perversion of the evidence and a contradiction of the solemn assertion made by plaintiff himself before the action was brought. In his verified claim made to the order he stated that his total disability from the prosecution of any and every part of his business began on August 4. The court does not assert, however, that this statement concludes the rights of plaintiff, but regards it as evidentiary only. (Brendon v. Traders & Travelers’ Acc. Co., 84 Hun, App. Div. 530, 82 N. Y. Supp. 860.) Not having testified in his own behalf, we are at liberty to presume that, had he done so, plaintiff would have adhered to his sworn statements made to
In Smith v. Select Friends, 62 Kan. 75, 61 Pac. 416, 53 L. R. A. 934, the court had before it a case where a member of a fraternal order was entitled to payment of a benefit for disability by accident when he became “totally and permanently disabled from following his usual or regular business, occupation, or profession.” By an accidental discharge of a gun the insured, who was a druggist, lost his left arm, which was amputated at the shoulder-joint. It was held that no indemnity could be recovered. It was said:
“He cannot recover under the contract of insurance which fixed the right of one party and the liability of the other unless he has sustained a total disability— that is, a complete disability to carry on the business of a druggist.” (Page 78.)
Among the cases cited with approval in Smith v. Select Friends, 62 Kan. 75, are Saveland v. The Fidelity & Casualty Co. of New York, 67 Wis. 174, 30 N. W. 237, 58 Am. Rep. 863, and Lyon v. The Railway Passenger Assurance Co., 46 Iowa, 631. The Wisconsin case notes the distinction between conditions in the agreement providing for the payment of indemnity where the person is immediately and wholly disabled and prevented from the prosecution of any and every kind of business pertaining to his occupation, as in the case at bar, and those contracts for indemnity requiring payment when the insured shall be totally dis1 abled from following his usual business or pursuits. The scope of the latter provision was before the court in Hooper v. Accidental Death Insurance Co., 5 H. &
“It appears to us they intended that when the insured was wholly incapable of performing a very considerable part of his usual business he should receive a compensation in respect of that disablement.”
Such a construction of the contract in the case before this court would ignore the express words employed by the parties, and make a new contract for them, in which partial disability would suffice to provide indemnity to a person who was insured against injury which should wholly and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation. (McKinley v. Insurance Co., 106 Iowa, 81, 75 N. W. 670; Knapp v. Preferred Mut. Accident Assn., 53 Hun, 84, 6 N. Y. Supp. 57; Fidelity and Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326; Bylow v. Union Casualty & Surety Co., 72 Vt. 325, 47 Atl. 1066.) The court does not mean to express, however, the opinion that a person holding a contract of indemnity for injury by accident like the one before us could not perform, after his hurt, some small part of his business affairs, such as giving thought to the state or progress of his business and advising others in respect thereto, or even dictating a letter on a matter within his knowledge which might be beneficial to his material interests. To hold otherwise would be to say that complete mental and physical paralysis must ensue from the accident before an indemnifying company would be liable.
We would also hesitate to decide that although the insured person was disabled wholly, in the opinion of medical experts, from transacting any part of his business by reason of the danger to life which might result, yet, if by a strenuous exercise of will power he should overcome his physical infirmities long enough to do something in a spasmodic way toward the prosecution of his ordinary trade, business, or profession,
“But the mere fact that he might be able, with due regard to his health, to occasionally perform some single and trivial act connected with some kind of business pertaining to his occupation as a merchant would not render his disability partial instead of total, provided he was unable, substantially or to some material extent, to transact any kind of business pertaining to such occupation. To illustrate this proposition by reference to the evidence in this case, it appears, as we shall assume, that on one or two occasions where the plaintiff went into his store when down town for other purposes he handed out some small article to a customer, and took the change for it. This would not necessarily prove that he was able to attend to the business of waiting on customers, and that he was not ‘wholly disabled’ within the meaning of the policy. He might be able, on temporary visits to the store, occasionally to perform a trifling act of this nature, and yet be substantially and essentially unable to transact any kind of business pertaining to his occupation of merchant.”
There is a hopeless confusion in the decided cases respecting the question under discussion. They are collected in a note to the case of Turner v. Fidelity & Casualty Co., 112 Mich. 425, 70 N. W. 898, 67 Am. St. Rep. 428, found in volume 38 of the Lawyers’ Reports, Annotated, page 529, and again by a writer in volume 35 of the Central Law Journal, page 150. There being a failure of proof showing total disability before August 4, 1902, the answer of the jury to special question No. 6 (set out in the statement) was without support in the evidence.
The only other question which we deem necessary to decide relates to the correctness of the ninth instruction given to the jury. It reads:
“The term ‘immediately,’ as used in these instruc*304 tions, means within a reasonable time, taking into consideration all the facts and circumstances as disclosed by the evidence, and does not mean at once, or forthwith, at all events, leaving out of consideration such .circumstances as disclosed by the evidence which tend to give a reasonable excuse for reasonable delay.”
In none of the cases referred to by counsel has the word “immediately” been held to be synonymous with “instantly” or “without delay.” Such a definition would deprive a beneficiary of all rights under an indemnity contract like the present, unless the hurt or prime cause of the injury were followed by instantaneous disablement. In the case of an accidental taking of poison into the stomach time must be allowed for the deadly substance to affect the human system, and such interim as the processes of nature consume in bringing the person poisoned to a state of disability must be excluded in determining the meaning of the word “immediately.” Two persons might receive similar cuts from a knife. One of them might not suffer an injury sufficiently serious to interfere in any degree with his usual business or professional pursuits. The other, while not affected at first, might by reason of an enfeebled physical condition be attacked within a week by blood-poisoning which would wholly prevent him from transacting any kind of business. The court is not prepared to say that in the latter case no recovery of indemnity could be had under a policy like that held by Mr. Barnes.
While the word “immediately,” in the connection used,'is an adverb of time, yet the period within which nature acts to work a total disability from an injury must vary in different persons. In the supposed case of blood-poisoning, if counsel for plaintiff in error is right, no recovery could be had under the accident policy in question because nature was too slow in her operations — because the consequence did not follow the known cause with sufficient celerity. To follow literally the words of the contract, if there Was any interim between the hurt and the total disability, be
It has been adjudged that the word “immediately” in such contracts of indemnity cannot mean “within a reasonable time,” for the latter phrase is referable only to an act done by human agency, in exercise of the will. (Williams v. Accident Association, 91 Ga. 698, 17 S. E. 982.) The use of the phrase “within a reasonable time” in the instruction under discussion is somewhat confusing as repeated in the closing paragraph, and its use at all in such cases widens the latitude of the jury’s investigation and brings forward a doubt whether the terms of the policy will admit of the employment of the words without changing the contract of the parties.
In Williams v. Accident Association, 91 Ga. 698, the court concluded that accident-insurance companies put into their policies the condition that the injury must be immediate and total to guard against the hazard of uncertain litigation to determine whether a disability occurring after the hurt was attributable to it. Of course, the disability must not flow from any other cause than the original injury. If it does, there is no liability. If the conditions of the contract can be extended so that the word “immediately” does not mean “instantaneously,” “at once,” and “without delay” (as all courts agree), then a greater stretch of the conditions cannot be said to be unreasonable in allowing for the period that nature halts before inflicting penalties for her violated laws. In such cases the disability is immediate, within the meaning of the policy.
The judgment of the court below is reversed and a new trial granted.
Resigned July 1, 1905, and succeeded on that date by the Honorable Silas W. Router, who was appointed by Governor Edward W. Hoch.
Rehearing
OPINION ON REHEARING.
The opinion of the court was delivered by
A petition for a rehearing was allowed in this case. Upon reargument and a further consideration of the record it has been thought proper to modify some of the expressions in the former opinion, and to consider some matters omitted therefrom, although the result will remain the same, as the judgment must be reversed and another trial granted.
All that was said in the former opinion in considering the terms “total disability” and “immediately,” and the construction to be placed thereon, with the criticism upon the trial court's instruction in reference
Our attention has been called upon reargument to the failure in the former opinion to apply the rule of construction announced therein to these terms in the policy and the facts in evidence in this case; and, upon further consideration, we are of the opinion that this court is not warranted in saying that “the evidence did not satisfy these conditions of the agreement.” Especially is this true if allowance is to be made for the interval in which nature may be said to halt, in some cases, before inflicting the penalty for her violated laws. It is possible also that too much importance was attached to the fact that during the interval between July 23 and August 4 Mr. Barnes, except for a day or two when he was complaining of being “under the weather,” went to the office and to some extent attended to his duties. There is some ground for a reasonable inference from the evidence that in the condition the business of the new company was during this time there was not much done by any one, and the duties performed by him were not such as demanded the effort his usual occupation required. Allowing to plaintiff every reasonable inference that the jury may have drawn from the facts proved with reference to his physical condition during the period from July 23 to August 4, we cannot say, without weighing the evidence, that the finding of the jury in answer to special question No. 6 was not sustained by the evidence.
The case, however, must be reversed for other reasons. It appears that plaintiff introduced in evidence the proofs of loss, including a preliminary statement of his claim and a notice of injury, both signed by bim, which contained self-serving statements in reference to the injuries claimed and his sickness. The proofs of loss were accompanied also by statements of a physi
“Both the letters and the affidavits contained many statements of facts and opinions bearing on the cause of death which were well calculated to be regarded by the jury as substantive proof upon the question, and it was error to receive it and allow it to be used for this purpose.”
The preparation of the notice and proofs of loss rests with the assured. They are often accompanied by ex parte statements and affidavits of eye-witnesses, physicians, and others. To allow such evidence to be admitted without restriction would enable the assured to load the proofs of loss and notice with self-serving statements without limit, and, under the guise of their competency for one purpose, use them as evidence of his case generally. (See Fidelity Mutual Life Association v. Ficklin et al., 74 Md. 172, 21 Atl. 680, 23 Atl. 197; Commonwealth Insurance Co. v. Sennett et al.,
The trial began April 12, 1904. Immediately before the jury were impaneled a motion to suppress certain depositions taken by defendant was allowed. The grounds of the motion were that the envelope enclosing the depositions, when received by the clerk from the mail-carrier, was found tó be torn open, disclosing the contents. The depositions were received and filed April 2. On the same day the motion to suppress was filed, but, except such notice as the dockets of the court imparted, counsel for defendant had no actual knowledge of the filing of the motion or that there was any defect in the depositions until the case was called for trial. Error is urged in allowing this motion, as well as in refusing the application for a continuance, presented immediately after, and which substantially complied with section 317 of the civil code (Gen. Stat. 1901, § 4765). The grounds of the motion to suppress were somewhat technical, especially as it appears from the affidavit of J. M. Orr, an experienced stenographer who took the depositions, that he sealed, addressed and mailed them and that at the time of the hearing they were in exactly the same condition as when they left his hands. (Bank v. Atkinson, 62 Kan. 775, 781, 64 Pac. 617.) The record does not show that his affidavit was called to the attention of the court until after the motion to suppress had been granted, and we cannot say that there was error in suppressing the depositions. But defendant was, without question, entitled to a continuance. The evidence, or some of .it, was very material to the defense, and no fault or neglect of defendant was responsible for the condition in which the depositions arrived at the clerk’s office. Even actual notice of the motion from the time it was
Some of the hypothetical questions asked of the expert physicians by the plaintiff were objectionable, for the reason that they assumed material facts which the evidence did not warrant, but it is unnecessary here to recite the questions at length.
Defendant asked the court to submit to the jury, among others, the following special questions:
“(1) Did plaintiff swallow a pin? (Submitted to the jury.)
“(2) If your answer to the last question be ‘yes,’ state on what date plaintiff swallowed the pin. (Refused, and excepted to.)”
It was material for plaintiff to show, either by positive testimony or by circumstances, when the injury occurred in order to ascertain whether loss of time followed immediately after the injury and was continuous therefrom, as well as to fix a time when, under the conditions of the policy, notice should have been given. If it be said that the court refused this question for the reason that there was no evidence from which the jury could have answered it intelligently, then there was a failure of evidence upon a very material matter. It might not have been possible for the jury to have given the exact date, but they could have been answered in accordance with the evidence. Another question asked the jury to state when plaintiff first learned that he had swallowed a pin. These should have been submitted. The others, calling for findings as to who was present when he swallowed it,'and the circumstances, were not proper.
The former judgment of reversal will stand, and the cause is remanded for further proceedings.
