Pepper v. Order of United Commercial Travelers of America, 113 Ky. 918

Pepper v. Order of United Commercial Travelers of America

113 Ky. 918 | Ky. Ct. App. | 1902

Opinion of ti-íe court by

JUDGE WHITE

Affirming.

The appellant pleads in his petition, to which demurrer was sustained, that he was a member of appellee organization, and had paid all fees, dues, and assessments due by him, and was entitled to all the rights and benefits of a *920member, and Unit by the constitution and laws of tbe order il is provided “that, if any such member who has p.aid all fees, dues and assessments, shall sustain, during the continuance of his membership, and while in good standing, bodily injury effected through external, violent and accidental means, which shall, independently of all other causes, immediately, wholly, and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation, he shall ... be indemnified,"’ etc. The petition then alleges that appellant was injured on May Í), 1898, while a member of the order in good standing, and, “while he was not immediately prevented from the prosecution of every part of his business, yet he was so prevented from the prosecution of any and every part of his business, which was that of a commercial traveler, and was so disabled and prevented for the, period of sixteen weeks from June 20, ISOS, to October'10, 1898; and by reason of said injury he was entitled to receive from defendant . . . four hundred dollars in all.” To this petition a demurrer was sustained, and, upon failure to plead further, the same was dismissed, and hence this appeal.

The theory upon which the demurrer was sustained was fhai it is shown by the petition that the disability did not, in point of time, immediately follow the accident; that there was an interval of'from May 9th to June 20th, in which there was no total disability. It is insisted by ax>pellant that it is not required by the Constitution and by-laws of the order, nor is it so pleaded in the petition, that the disability shall, in point of time, immediately follow the injury, but that the word “immediately,” there used, is intended to mean the same as the preceding phrase “independently of all other causes,” and in the sense of .“directly,” *921as opposed to “indirectly,” and lias no reference to time. Tt is true, that the word “immediately” has the two meanings, one as to time and the other as to causation. The question here is as to which of these meanings applies to the word in the connection here. The most common use of the word is in reference to time, and that meaning would ordinarily be given to the word if the connection of its use permits. It would be a clear repetition if it was intended t'o mean without other causes, because that is clearly expressed by the phrase directly preceding. It was not intended to use several words in connection to convey the same meaning', for the following words are “wholly and continuously disable,” etc., which refer to degree of injury, and not cause or lime. We are of opinion that the word “immediately,” as used, refers to time, and means that the disability shall follow Avithin a very short time the receiving the injury. In this Anew Ave are supported by the only two cases where this question has ever been presented for adjudication, viz., Williams v. Association, 91 Ga., 698, 17 S. E., 982, and Merrill v. Insurance Co., 91 Wis., 329, 64 N. W., 1039. The policy of accident insurance in the Williams case read identically like the plea here: “Which should independently of all other causes, immediately, wholly and continuously disable.” The court held that the Avord “immediately” referred to time, and not cause. In the Merrill case the policy provided: “Which should, independently of all other causes, immediately and Avholly disable,” etc. This proA’ision, so far as the word “immediately” is concerned, is identical with the case at. bar. The court held that the use referred to time, rather than cause, following and approving the Georgia-court in the Williams case, supra. We haA-e been referred to no other cases, and have found none, where this question has been decided. We *922conclude that this is the proper meaning of the use of the word, and that, therefore, by the statements of the petition, appellant was not immediately disabled, and could not, therefore, recover.

Judgment affirmed.

Petition for rehearing by appellant overruled.