Parrell v. Am. Employers' Liab. Ins. Co.

• Decision Date: 14 March 1896
• Parties: PARRELL v. AMERICAN EMPLOYERS' LIABILITY INS. CO.
• Court: Vermont Supreme Court

34 A. 478

68 Vt. 136

PARRELL

v. AMERICAN EMPLOYERS' LIABILITY INS. CO.

Supreme Court of Vermont. Rutland.

March 14, 1896.

Exceptions from Rutland county court; Thompson, Judge.

Assumpsit by Bridget Farrell against the American Employers' Liability Insurance Company. Plea, the general issue. Verdict and judgment for plaintiff. Defendant excepts. Reversed.

The suit was upon a policy of accident insurance. The alleged accident resulted in the death of the insured, and this suit was brought by his wife. The material parts of the policy were as follows: "This policy witnesseth, that in consideration of the warranties contained in the application therefor, and for an order of moneys therein specified, on C. V. it. R., the American Employers' Liability Insurance Co. (hereinafter called the 'company') does hereby insure Martin Farrell (hereinafter called the 'insured'), classified by occupation as three (3), for the period below specified, beginning at noon of the day this policy is dated: First. In the event of injuries resulting in death through external, violent, and accidental means, one year's wages. Second. In the event of injuries, which shall be the direct and sole cause of the loss, by actual sepa ration, at or above the ankle or wrist, of both feet or both hands, or of one hand and one foot, or of the permanent loss of sight of both eyes, one year's wages. Third. In the event of injuries, which shall be the direct and sole cause of the loss, by actual separation, at or above the ankle or wrist, of one hand or one foot, one-half year's wages. Fourth. In the event of injuries, which shall immediately and wholly disable the insured from prosecuting any and every kind of business pertaining to his occupation above stated, full weekly wages for a period not exceeding fifty-two (52) weeks. Fifth. Medical attendance during any period of disability resulting from accident. Sixth. Funeral expenses in the event of death resulting from accident. Payment under items first, second, or third shall terminate the policy, and the whole amount payable shall not exceed three thousand dollars: provided, that in the event of injury to the insured, before the payment of said premium, or any installment thereof, the same shall be deducted from the amount payable in the adjustment of any claim: provided, further, that the payments specified in the order are premiums for consecutive periods of two, two, three, and five months, and which shall apply only to its corresponding insurance period. In case the insured shall fail to pay, or leave in the hands of the paymaster, the installments of premium, as agreed in said order, this contract shall be void. In case of death under the provisions of this policy, the company will pay the amount provided for under item first to Mrs. M. Farrell, wife, if surviving, or, in the event of her prior death, to the legal representatives or assigns of the insured." Upon the policy were the following "agreements and conditions under which this policy is issued and accepted: 1st. Upon the occurrence of any accident in respect of which a claim is made under this policy, immediate written notice thereof, in form prescribed by this company, shall be given forthwith to the company at its office in the city of New York, or to the resident managers whose names appear hereon, which notice shall contain all particulars thereof, and full name and address of the insured. If affirmative proof of such claim or claims is not furnished the company within seven months from the date of said accident, all claims based thereon shall be forfeited to the company. 2nd. The company may cancel the policy at any time by written notice to the insured, and will, on demand, refund a pro rata of the premium paid. 3rd. Any medical adviser of the company shall be allowed, as often as he requires, to examine the person or body of the insured in respect to any alleged injury. 4th. The terms and conditions of this contract cannot be waived by agents. 5th. Any legal proceedings for recovery under this contract must be commen ced within six months, where it is claimed the insured or representatives are entitled to the principal sum of the contract, and, in case of weekly indemnity, within three months after disability ceases, or within fifteen months aftter the occurrence of the accident on account of which claim arises. 6th. Any claim shall be subject to proof of interest, and no assignment of interest under this contract shall be made unless the consent of the company is formally indorsed thereon by an officer of the company; otherwise the company shall not be responsible for the validity of such an assignment. 7th. If the insured is fatally or otherwise insured in any occupation or exposure classed by this company as more hazardous than that herein stated, this company's liability shall be for such benefits as the premium paid by him will purchase at the rates fixed for said increased hazard. Immediate notice of change of occupation must be given to the company or its resident managers."

The declaration alleged that "the defendant did make, execute, and deliver to Martin Farrell, of said Clarendon, its certain policy of insurance upon the life of said Martin Farrell, against certain accidental injuries as therein specified, which said policy was numbered 16,013, was signed by John Macrae, secretary and general manager of said defendant company, and was countersigned by one N. F. Clark, special agent of said defendant; and thereby and therein, in consideration of the warranties contained in the application thereof, and of an order for moneys therein specified on the Central Vermont Railroad Company, the said defendant did thereby insure the said Martin Farrell, classified by occupation as 'three,' for the period thereinafter specified, to wit, for the period of one year, beginning at noon on the day said policy was dated, to wit, on said 1st day of July, 1893. And therein and thereby the said defendant did promise, in the event of injuries resulting in the death of said...