Bosworth v. Metro. Life Ins. Co.

• Decision Date: 06 March 1934
• Docket Number: (No. 7768)
• Citation: 114 W.Va. 663
• Parties: Charles J. Bosworth v. Metropolitan Life InsuranceCompany
• Court: West Virginia Supreme Court

114 W.Va. 663

Charles J. Bosworth

v. Metropolitan Life InsuranceCompany

(No. 7768)

Supreme Court of Appeals of West Virginia.

Submitted February 14, 1934.

Decided March 6, 1934.

1. Insurance

A case in which the permanent loss by an insured of 90% of vision entitles him to benefits under an accident insurance policy insuring against total and irrecoverable loss of sight, and to benefits under a life policy containing a disability clause, indemnifying against disability resulting from bodily injury or disease permanently preventing him from engaging in any occupation and performing any work for compensation.

2. Insurance

Disability of an insured, resulting directly from inhaling poisonous chemical dust without design, intent or expectation on his part, is covered by an accident insurance policy insuring against permanent disability due to violent and accidental means.

Error to Circuit Court, Kanawha County,

Action by Charles J. Bosworth against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Modified and affirmed.

Brown, Jackson & Knight and W. T. O'Farrell, for plaintiff in error.

J. Howard Hundley, for defendant in error.

Litz, Judge:

This is an action to recover benefits under two insurance policies of $1,000.00 each. One is an accident policy. The other is a life policy containing a disability clause applying to "bodily injury or disease". To the judgment entered upon a verdict in favor of plaintiff for the full amount of the policies, defendant prosecutes error.

The accident policy stipulates that payment will be made to the assured for the total and irrecoverable loss of sight of both eyes due to "violent and accidental means". The life policy containing a disability clause provides for payment of benefits in monthly installments to the amount of $1,000.00 upon due proof by the assured to the insurer that "he has become so disabled, as a result of bodily injury, or disease, as to be prevented permanently from engaging in any occupation and performing any work for compensation."

From December, 1931, until the latter part of January, 1932, plaintiff, as an employee of the Rubber Service Laboratories Company in its plant at Nitro, Kanawha County, assisted in the partial preparation of a chemical known as "V-784", as follows: Certain materials daily were placed in a large kettle and heated to a high temperature. After cooling (which caused the consistency to solidify into a hard mass), it was removed by chipping with a crow-bar or chisel. Twice weekly the accumulation was treated with acid, washed, dried, and ground into powder. Plaintiff did not participate in the grinding stage of the process. He says that about the last of January, he experienced a failing of vision, but does not say whether he suffered pain or that his eyes became inflamed. He further testifies that he consulted a doctor, February 2nd, "to see what was wrong", but fails to state what the doctor advised him. He had no further connection with the preparation of the product until June 16th and 17th, following (after an improvement of his eyes), when he ground a considerable quantity of the chemical, and dismantled and cleaned the mill he had been using. He states that on the 18th he was so blind he "could hardly tell daylight from dark". Dr. S. H. Phillips, of Charleston, who examined him, first in August and numerous times thereafter, testified that plaintiff had suffered 90% loss of vision, due, in his opinion, to inhaling the dust from the chemical; and that because of atrophy of the optic nerves resulting therefrom, the impaired vision of plaintiff is permanent. It also appears from the testimony of Dr. Phillips and plaintiff that he is unable to distinguish objects. Plaintiff, not having worked after June 17, 1932, was in November of that year placed on a six-hour shift, at one-half his former wage, as watchman at the entrance of the chemical plant with the duty of admitting the workmen. The evidence for plaintiff tends to show that the company gave him this employment, as a matter of charity, because of his long service and the needs of himself and family.

The defense to the general disability policy is that plaintiff has not become so disabled "as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit'', within the meaning of the policy. Two additional defenses are set up to the claim under the accident policy, as follows: (1), The disability did not result from accidental means; and (2), the disability was caused by occupational disease.

Is plaintiff so disabled as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit in contemplation of the policy? We have held that disability clauses in health and accident policies are to be given a liberal construction in favor of liability; and that, accordingly, the assured is entitled to recover if he is unable to perform substantially all of the material acts necessary to the prosecution of his occupation, or other work as specified in the policy, in the customary and usual manner....