American Acc. Co. of Louisville v. Carson

• Decision Date: 01 May 1895
• Citation: 30 S.W. 879
• Parties: AMERICAN ACCIDENT CO. OF LOUISVILLE v. CARSON. [1]
• Court: Kentucky Court of Appeals

30 S.W. 879

AMERICAN ACCIDENT CO. OF LOUISVILLE v. CARSON. ^[1]

Court of Appeals of Kentucky.

May 1, 1895

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by R. Carson against the American Accident Company of Louisville. Judgment for plaintiff, and defendant appeals. Reversed.

O'Neal Phelps, Pryor & Selligman and Bullitt & Shields, for appellant.

R. C Warren, M. C. Saufley, and W. G. Welch, for appellee.

HAZELRIGG J.

One Winship was soliciting agent for Oliver, a general agent of the appellant. An application for an accident policy was prepared by the solicitor, and signed by the applicant Stewart M. Carson, of Branford, Fla., in which the "kind of business" in which Carson was engaged was stated to be "merchant druggist," and his duties "fully described" as "salesman in store." The back of the policy described the applicant as a "druggist," and upon its receipt he returned it to Oliver, at Macon, Ga., asking him to correct it as he was not a druggist, but a "dealer." The agent informed him that, if a correction was necessary, the company would have to know what kind of a dealer he was, but, as he was insured in division A, no correction was needed. It is admitted in the pleadings that in addition to being a dealer in confectioneries, etc., the applicant was a deputy sheriff, with power to make arrests; and it further appears that on May 8, 1891, he was shot by a prisoner whom he had arrested and was conducting to jail, and died in less than half an hour thereafter. The policy is dated April 4, 1891, and by its terms the applicant, in consideration of the sum of $7, was insured for the term of three months against bodily injuries through external, violent, and accidental means (1) which wholly disabled him; (2) such injuries which partially disabled him; (3) such injuries resulting in the loss of an eye; (4) loss of a hand or foot; and (5) loss of both hands or feet, etc., in which last event the full amount of policy, viz. the sum of $5,000, was to be paid to the insured, if he survived, or, if death resulted from such injury in 90 days, the full principal sum was to be paid to R. Carson the father of the insured. Among the conditions indorsed on the back of the policy, and upon which it issued, was one reading as follows: "(6) This insurance does not cover disappearances; nor suicide, while sane or insane; nor injuries, whether fatal or otherwise, of which there is no visible mark upon the body; nor accidental injuries, or death resulting from a cause directly or indirectly, wholly or in part, by hernia, fits," etc.; "nor extend to or cover intentional injuries inflicted by the insured or any other person, or injury or death happening while insured is insane," etc.

This action was brought by the appellee, the father of the insured, and recovery on the policy is sought to be defeated (1) The injuries resulting in the death of the insured were not through accidental means; because (2) the insured lost his life by reason of an intentional injury inflicted by another person, and the terms of the contract do not extend to or cover such a state of case; (3) the insured concealed from the company his hazardous employment as deputy sheriff; and (4) the agreement was to insure Carson as a merchant or druggist, and not otherwise, as was fully explained to the applicant, and agreed to by him, with a knowledge of all the facts. The lower court held that the injuries were accidentally inflicted, in the meaning of the policy; that the words "intentional injuries inflicted by another person," within the meaning of the condition of the policy, meant such as did not result in death, and therefore the conditions of the defeasance did not exist. Further, that the solicitor of the company had notice that the applicant...