45 Fla. 525 | Fla. | 1903
The defendant in error, Henry Robinson, sued the plainiiff in error, Tin1 Preferred Accident Insurance Company of New York, in the Circuit Court of Duval county. The declaration alleged as follows: “Henry Robinson, by Win. B. Young, bis attorney, sues The Preferred Accident Insurance Company of New York, a corporation created and existing under and by virtue of the laws of the State of New York, and having an agent residing in the city of Jacksonville in said county, for that whereas, 6n the 9th day of April, 1897, the said defendant undertook and agreed in writing, in consideration of the annual premium ofJwenty-four dollars then and there .paid by the said plaintiff and accepted by said defendant, to insure the said plaintiff for the term of twelve calendar months, beginning at twelve o’clock noon on said date, and ending at twelve o’clock noon on the 9th day of April, 1898, against the effects of bodily injury caused solely by external, vio-, lent and accidental means, to-wit: in the sum of twenty-five dollars per week, not exceeding one hundred and four consecutive weeks, where the injury received as aforesaid, shall, independent of all other causes, and immediate ly following the receipt thereof wholly and continuously disable him from transacting any and every kind of business pertaining to his occupation as president of a bank, and plaintiff avers that on, to-wit: the 2(>th day of June, 1897, while out riding in said county, a foreign substance, to-wit: poison ivy, was blown into plaintiff’s left eye, Which caused inhumation to immediately set in extending to both eyes and to the face, by reason of which injury so sustained plaintiff was wholly and continuously disabled from transacting any and every kind of business
Attached to the declaration as the cause of action sued on was a copy of the contract of insurance in the words and figures following:
No. 0013909
Maximum Weekly Indemnity Maximum Death Benefit
$50. per week. $10,000.
THE PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK. *
In consideration of the agreement, statements and warranties contained in the application for this policy and of the anual premium of twenty-four dollars, has accepted Henry Robinson of Jacksonville, State of Florida, a President, “Bank” by occupation, and, subject to all of the rrovisions and conditions herein contained, or endorsed
.IN WITNESS WHEREOF, TheK Preferred Accident Insurance Company of New York has caused this policy to be signed by its President and Secreta-ry, and - delivered at the office of the company, in the City of New York, State of New York,
KIMBALL C. ATTWOOD, Secretary.
P. C. LOUNSBURY, President.
(Conditions on Back of Policy.)
CONDITIONS.
This policy is issued to and accepted by the insured subject-to the following provisions and conditions: 1. The insured is permitted to travel by regular lines of passenger conveyance anywhere throughout the civilized world. 2. Notice of any accidental injury for which claim is to be made under this policy shall be given in writing addressed to the Secretary of the company at New York City, stating full particulars of the accident and injury, and failure to give such written notice within ten (10) days from the date of injury (whether fatal or nonfatal) shall invalidate any and all claims under this policy. Affirmative proofs of death or of injury and duration of disability, and that the same resulted proximately and solely from accidental causes within the terms of , this contract shall be furnished to the company within the following limit of time; (1) as to fatal injury, within two months from the date of such death; (2) as to injury resulting in the entire loss of one orJboth hands, feet or eyes, within four months from the’date of such injury; and as to any other disabling injury, within thirty, days after the termination of such disability — otherwise all claims based ' upon any of the foregoing injuries shall be forfeited. ENDORSED: |10,000. Combination Partial Disability and Hotel Policy. Read your Policy. Notify Secretary at once if injured. The Preferred Accident Insurance Co. of New York. Policy No. 0013909, issued in favor of Henry Robinson, Jacksonville, Fla. ,
Upon these pleas issue was joined and the cause tried to a jury, which resulted in a! verdict and judgment for the plaintiff, to review which the defendant sued out a w rit of error from this court.
(after stating the facts.)
At the trial the plaintiff, to prove the allegations of Ins declaration, offered in evidence the policy of insurance, copy of which was attached to his declaration, as the cause of action sued upon, but to the introduction of it in evidence the defendant objected on the grounds that said paper varied from the declaration; that the same did not correspond to the declaration; that the same was not the contract declared on as alleged in the declaration; that the same was not competent evidence of the contract set forth or declared on in the declarations. The judge overruled these objections and admitted the paper in evidence, to which ruling the-defendant duly excepted.1
The court gave to the jury the following charges, numbered as follows: “2nd. The court instructs you that the j olicy of insurance given in evidence by plaintiff sustains the allegations of the contract alleged in the declaration.” “4th. If you find that the plaintiff was injured accidentally by poison ivy striking him in the eye, and inflammation was the result solely from poison ivy strikink or being wafted into plaintiff’s eye, and being absorb
All these rulings and charges were duly and severally excepted to and are severally assigned and argued as error. Whether these assignments of error are well taken depends upon the proper construction of the contract of insurance sued upon. The policy or contract of insurance contains, as will be observed, the following provisions: “The Preferred Accident Insurance Company.of New York, in consideration, &c. * * * and, subject to all of the provisions and conditions herein contained, or endorsed hereon, hereby insures him (Henry Robinson), * * * against the effects of bodily injury, caused solely by external, violent and accidental means. This insurance does not cover disappearance, nor suicide, sane or insane; nor any case of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof that such disability or death resulted proximately and solely from accidental causes; nor death or disability happening to the insured either while intoxicated, or in consequence, of his being or having been under the influence of any intoxicant or narcotic; nor injury, fatal or non-fatal, resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed or inhaled.”
It is contended here for the defendant in error that under the decision of the courts of New York in the case of Paul v. Travelers’ Ins. Co. 112 N. Y. 472, 20 N. E. Rep. 347, that the injury received by the plaintiff below as set out in his declaration is covered by the policy of insu
A lucid and forceful expose’ of the fallacy and unsoundness of the reasoning and conclusions in the NeAV York and other courts following her, will be found in the case of McGlother v. Provident Mut. Acc. Co. of Philadelphia, 89 Fed. Rep. 685. See, also, Early v. Standard Life & Accident Ins. Co., 113 Mich. 58, 71 N. W. Rep. 500; Westmoreland v. Preferred Acc. Ins. Co., 75 Fed Rep. 244.
Under our construction of the plain and unambiguous language of the contract of insurance sued upon in this case, the injury alleged to the plaintiff’s eye from poison absorbed by accidentally coming in contact Avith poison ivy is expressly excepted from the accidents insured against, and that under the policy sued upon no recovery can be had upon the allegations made in the declaration herein. It follows from what has been said that the court below erred in admitting the policy of insurance objected to in evidence in the cause, upon the ground of the objec
For the errors found the judgment of the court below in said cause is reversed at the cost of the defendant in error.