Aetna Life Insurance Co. v. Bethel

• Decision Date: 16 November 1910
• Citation: 140 Ky. 609
• Parties: Aetna Life Insurance Co. v. Bethel.
• Court: Kentucky Court of Appeals

140 Ky. 609

Aetna Life Insurance Co. v. Bethel.

Court of Appeals of Kentucky.

Decided November 16, 1910.

Appeal from Henderson Circuit Court.

COPYRIGHT MATERIAL OMITTED

YEAMAN & YEAMAN for appellant.

JOHN C. WORSHAM for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

The appellant company issued to Dr. John T. Bethel a policy of accident insurance that was in full force at the time of his death in April 1909. In one clause, it was provided that the company in consideration of stipulated premiums would pay the insured the —

"Sum of twenty-five dollars per week indemnity against loss of time resulting from bodily injuries effected, during the term of this insurance, through EXTERNAL, VIOLENT AND ACCIDENTAL MEANS, which shall, independently of all other causes, immediately, continuously and wholly disable him from prosecuting any and every kind of business pertaining to his occupation, above stated; or if such injuries shall not wholly disable the insured, as above, but shall immediately, continuously, and wholly disable him from the performance of one or more important daily duties pertaining to the occupation, or if, following a period of total disability resulting from such injuries, he shall be in like manner partially disabled, the company will pay two-fifths of the weekly indemnity herein provided for total disability for the period of such partial disability but not for more than twenty-six consecutive weeks of partial disability, nor will payments be made for total disability or total and partial disability combined exceeding in amount the principal sum insured by this policy as stated in clause `e.'"

Following this clause there are several others, providing compensation and indemnity for injuries resulting in the loss of feet, hands and other members of the body; and then this one:

"If death results solely from such injuries within ninety days the said company will pay the principal sum of five thousand dollars to Bell Bethel, his wife. * * * In event of death following bodily injuries of which there existed no external or visible mark upon the body of contusion or wound sufficient to cause death (accidental drowning only excepted) and an autopsy showed that such injuries materially contributed to the death of the insured, then in all such cases referred to in this paragraph, the limit of this company's liability shall be one-fifth the amount otherwise payable under this policy, anything to the contrary in this policy notwithstanding."

It was further provided that:

"Immediate notice in writing of any accident or injury on account of which claim is to be made shall be given said company at Hartford, Conn., with full particulars and full name and address of the insured; and unless affirmative proof of death, loss of limb or sight, or duration of total or partial disability, and that the same was the proximate result of external, violent and accidental means, is so furnished within five months as to death, loss of limb or sight, from the happening of such accident, * * * the company shall be released from all liability for the payment of any claim based thereon."

About 11 o'clock on the morning of April 6th, 1909, Dr. Bethel, returning from a visit to a patient, drove his buggy up to his home, and while attempting to alight therefrom fell to the ground, and on April 23d, 1909 died. The beneficiary in the policy, who was his widow, the appellee Bell Bethel, insisted that his death was caused by the fall, demanded of the company that it pay to her the full amount stipulated in the policy, and upon the refusal of her demand, she brought suit to recover the amount.

The petition, after reciting the clauses of the policy under which the company agreed to pay the amount claimed, and that have been heretofore set out, averred that:

"On or about the ____ day of April, 1909, the insured, the said John T. Bethel, while attempting to get out of his buggy in front of his office in the city of Henderson, Ky., through external, violent and accidental means, fell and sustained such injuries to his head and body as, independently of all other causes, resulted in his death on the 23d day of April, 1909. * * * Plaintiff says that as soon as she learned of the cause of the insured's death, and was informed of the defendant's liability therefor under its said policy, to-wit: On the 26th day of July, 1909, she notified the defendant in writing, addressed to it at Hartford, Conn., of said accident and injury to the insured and his resulting death, giving in said notice the full name of the insured and the number of his insurance policy with defendant, and requested the defendant to furnish her with blanks for making up proofs of death. She says that said notice was received by the defendant, but that it did not reply to same, and that it neglected and refused to furnish her with said blanks for proofs of death; that it was the custom of the defendant to furnish such blanks. * * *

It further averred in substance that in August, 1909, the company sent its adjuster to Henderson to investigate the claim, and the adjuster represented to plaintiff that he wanted the names of the witnesses to the accident, and the physicians who attended him, so that he could make a full and complete investigation for his company, and that as soon as said investigation was made the defendant would notify plaintiff whether or not her claim would be paid. That relying upon said representations she gave the agent such information as he desired, and he made a full investigation of said claim, but that the company never notified her whether or not it would pay said claim, nor requested of her further proofs of death, and by this conduct waived any right it might have had to require said proofs. She further averred that before the institution of this suit, she sent proofs of death to the defendant at its office in Hartford, Connecticut.

To this petition the company filed a general demurrer, which was overruled. It then answered, denying that Dr. Bethel through external, violent or accidental means fell or sustained such injuries or any injuries to his head or body as, independently of all other causes, or at all, resulted in his death; or that his death was due or caused by said accident.

In another paragraph it pleaded "that no accident that befell the said Bethel, caused any external or visible marks upon his body of contusion or wound, and there did not exist any external or visible mark upon his body of contusion or wound at all; nor was any autopsy had over his body." It then set up the terms of the policy, providing that unless there existed external or visible marks upon the body of contusion or wound sufficient to cause death, the company would not in any event be liable exceeding one-fifth of the amount otherwise payable under the policy. But did not raise any issue or question as to the sufficiency of the notice of the injury or the proofs of loss.

A trial before a jury resulted in a verdict in favor of the appellee for five thousand dollars. From the judgment upon this verdict this appeal is prosecuted.

The first error assigned is that the petition did not state a good cause of action (1) because it failed to allege that the accident "independently of other causes, immediately, continuously and wholly disabled the insured from prosecuting any and every kind of business pertaining to his occupation," (2) it failed to state sufficiently that the company was furnished with notice and proofs of injury and death.

It is the contention of counsel for the appellant that the petition should have stated not only that the injury received by Dr. Bethel resulted from external, violent and accidental means, independently of all other causes, but that such injuries "immediately, continuously and wholly disabled the insured from prosecuting any and every kind of business pertaining to his occupation."

The contract of insurance contains several indemnity features, some of them providing compensation for total disability, others compensation for partial disability and yet others compensation for the loss of limbs and other parts of the body. The words "immediately, continuously and wholly disable the insured from prosecuting any and every kind of business pertaining to his occupation" are in a clause providing for weekly indemnity, when the insured is immediately, continuously and wholly disabled from prosecuting his business, or, immediately, continuously and wholly disabled from performing one or more important daily duties pertaining to his occupation. And the words "immediately, continuously and wholly" relate to the weekly indemnity that will be paid and not to indemnity for death. If the attempt is to recover weekly indemnity, then the insured must allege that the accident immediately, continuously and wholly disabled him. In other words, he must bring himself within the clause of the contract that makes the company liable by setting out that the conditions upon which its liability depends exist. But if, as a result of bodily injuries, caused by external, violent and accidental means, independently of all other causes the insured comes to his death, within ninety days from the date of the injury, the liability of the company attaches without reference to whether the injury immediately, continuously or at all disabled the insured from following his occupation. The separate clause in the policy relating to indemnity for death and which provides that it shall be paid "if death results solely from such injuries" refers alone to such injuries as are the result of "external, violent and accidental means, which independently of all other causes" produced the death, and not to such injuries as immediately, continuously and wholly disabled the insured from following his occupation. If the death of the insured results from external, violent and accidental means, independent of any other cause, within ninety days from the time...