108 P. 649 (Mont. 1910), Da Rin v. Casualty Co. of America

Citation:108 P. 649, 41 Mont. 175
Opinion Judge:BRANTLY, C.J.
Attorney:Kremer, Sanders & Kremer, for appellant. Jesse B. Roote and Jas. E. Murray, for respondent.
Judge Panel:SMITH and HOLLOWAY, JJ., concur.
Case Date:April 25, 1910
Court:Supreme Court of Montana

Page 649

108 P. 649 (Mont. 1910)

41 Mont. 175




Supreme Court of Montana

April 25, 1910

Appeal from District Court, Silver Bow County; Jeremia J. Lynch, Judge.

Action by Peter Da Rin, administrator of Joseph Battista Pinazza, against the Casualty Company of America. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Page 650

Kremer, Sanders & Kremer, for appellant.

Jesse B. Roote and Jas. E. Murray, for respondent.


Action by the plaintiff, as administrator of Joseph Battista Pinazza, deceased, to recover on a policy of insurance for the death of his intestate, caused by accident. On May 20, 1908, one Labek, a miner working underground in a drift in one of the mines of the Boston & Montana Consolidated Copper & Silver Mining Company (hereafter referred to as the mining company), in Silver Bow county, was overcome by gas. Upon discovery of his condition, through the outcry of his companion, Pinazza, with others who were working with him near by, ran to his assistance. Pinazza preceded the rest, and while attempting to drag the injured man out into the other workings where the air was better and he could have relief, he was himself overcome, and thereafter, on the same day, died from the effects of the inhalation. Prior to that time, and for the benefit of the miners and others in its employ, including Pinazza, the mining company had negotiated with the defendant a policy of insurance, under the terms and stipulations of which the latter insured these employés against bodily injuries, whether resulting in death or not, "suffered directly through external, violent and accidental means, on account of an accident occurring during the term" of the policy, by reason of the business operations therein stated, and "while on the premises of the company or upon the ways immediately adjacent thereto, provided for the use of such employés or the public." The policy, among other special agreements, contains the following:

"(A). If the death of any employé shall so result within ninety days from such injuries, independently of all other causes, the company will pay to the assured a sum equal to fifty-two weeks' wages, computed at the rate per week received by such injured employé at date of accident; but such sum shall not exceed one thousand five hundred dollars."

"(F). Recovery may be had for the benefit of the same employé under one of the foregoing clauses only as respects the result of injuries caused by any one accident; and in no event shall the company's liability for a casualty resulting in injuries to or death of several persons, exceed ten thousand dollars. ***

"(G). It Is further understood and agreed that injuries, fatal or otherwise, resulting from poison or anything else accidentally absorbed or inhaled while actually engaged in operations connected with business of the assured, are covered by this policy."

It also contains the following general agreements:

"General Agreements.

"1. The assured, upon the occurrence of a casualty covered hereby shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company's duly authorized local agent or to its home office in New York City; and shall also give immediate written notice, with full particulars, of any and all claims which shall be made on account of a casualty covered hereby; and shall at all times render to the company all possible co-operation and assistance.

"2. Affirmative proof of death, or loss of limb or sight, or of duration of disability must be furnished to the company within two months from the time of death, loss of limb or sight, or termination of disability. Legal proceedings for recovery hereunder may not be brought within three months from date of filing final proofs at the company's home office; nor brought at all unless begun within six months from time of death, loss of limb or sight, or termination of disability. ***

"10. This policy does not cover disappearance, or suicide--sane or insane; nor injuries of which there is no visible mark upon the body, nor injuries resulting from voluntary

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overexertion, exposure to unnecessary danger or violation of law," etc.

There was indorsed upon it the following, as an amendment to paragraph 10 of the General Agreements: "Endorsement: It is understood and agreed that the clause in paragraph 10 of the General Agreements reading 'nor injuries of which there is no visible mark upon the body,' is not to apply to death or permanent disability, resulting directly from an accident covered by this policy, provided that affirmative proof is given to the company that said death or permanent disability was the direct, sole result of an accident as aforesaid."

The policy was taken by the mining company in its own name, but the premium paid for it was obtained by deductions by the mining company from the monthly wages of all the employés for whose benefit it was negotiated. These deductions were made by...

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