Biathrow v. Continental Cas. Co.

Decision Date28 October 1976
Citation371 Mass. 249,356 N.E.2d 451
PartiesMurton BIATHROW v. CONTINENTAL CASUALTY COMPANY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Joseph F. Sawyer, Jr., Worcester, for defendant.

Robert V. Mulkern, Worcester, for plaintiff.

Before HENNESSEY, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

REARDON, Justice.

This case comes here on a report by the Justices of the Appeals Court. The defendant had appealed from a verdict for the plaintiff for $4,200, plus interest, in a contract action under an 'Accident and Sickness' insurance policy for injuries which the plaintiff sustained in an accident. The defendant is here on its exceptions to the denial of its motion for a directed verdict and to the Superior Court judge's charge to the jury.

The plaintiff's accident consisted of a fall down some stairs on August 30, 1966, which caused injury to his lower back. The clause at issue in his policy reads: 'With respect to the insured, the policy does not cover any loss caused by or resulting from: any disorder of the spine and/or lumber muscles.' The plaintiff at the time of his application for the policy suffered from kyphoscoliosis (curvature of the spine) caused by a childhood disease. After his fall his back condition was diagnosed as 'acute lumbarsacral strain and kyphoscoliosis.' The judge in his charge to the jury stated that 'if you find that this was a result of an injury imposed upon a pre-existing condition that could not reasonably have been forecast in all probability, then the plaintiff in this case is entitled to recover for the length of his disability whatever you find that to be. On the other hand, if you find that his condition, as it existed after the fall, was the result of the natural extension of the pre-existing condition that he had since childhood, and if you find it was a natural extension of this condition and that resulted in his disability and you found there was disability, he could not recover under the policy.'

The defendant argues that: (1) as matter of law, the plaintiff is barred from recovery by the terms of the elimination indorsement, and (2) if liability is not thus precluded, the interpretation of the indorsement is a question of fact to be resolved by the jury. We disagree with both contentions and affirm the judge's refusal to grant the defendant's motion for a directed verdict at the close of the evidence. It may well be that the defendant intended by...

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5 cases
  • Panesis v. Loyal Protective Life Ins. Co.
    • United States
    • Appeals Court of Massachusetts
    • January 31, 1977
    ...v. Fireman's Fund Ins. Co., 344 Mass. 99, 103--104, 181 N.E.2d 557 (1962); Biathrow v. Continental Cas. Co., --- Mass. ---, ---,d 356 N.E.2d 451 (1976). The jury were not required to believe that because of Steven's temporary employment during the brief period between March and July, 1973, ......
  • Cody v. Connecticut General Life Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 12, 1982
    ...defendant. We disagree. The interpretation of an insurance contract is not a question of fact for the jury. Biathrow v. Continental Cas. Co., 371 Mass. 249, 356 N.E.2d 451 (1976). See Daley v. J. F. White Contracting Co., 347 Mass. 285, 288, 197 N.E.2d 699 (1964); Hiller v. Submarine Signal......
  • Radiology Resources, Inc. v. Busfield
    • United States
    • Appeals Court of Massachusetts
    • July 15, 1986
    ...90 (1945); Sherman v. Employers' Liab. Assur. Corp., Ltd., 343 Mass. 354, 356, 178 N.E.2d 864 (1961); Biathrow v. Continental Cas. Co., 371 Mass. 249, 251, 356 N.E.2d 451 (1976); Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146-147, 439 N.E.2d 234 (1982). He was also correct in ru......
  • Bates v. John Hancock Mut. Life Ins. Co.
    • United States
    • Appeals Court of Massachusetts
    • January 11, 1978
    ...reasonably subject to more than one interpretation and is therefore ambiguous. Biathrow v. Continental Cas. Co.,--- Mass. ---, --- a, 356 N.E.2d 451 (1976). The exclusion, on its face, applies only to one who is aboard an aircraft for the purpose of performing "specific duties." That term c......
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