Continental Cas. Co. v. Ogburn

• Citation: 175 Ala. 357,57 So. 852
• Parties: CONTINENTAL CASUALTY CO. v. OGBURN.
• Decision Date: 23 November 1911
• Court: Supreme Court of Alabama

57 So. 852

175 Ala. 357

CONTINENTAL CASUALTY CO. v. OGBURN.

Supreme Court of Alabama

November 23, 1911

Rehearing Denied Feb. 15, 1912.

Appeal from Circuit Court, Jefferson County; E. C. Crowe, Judge.

Action by Lula Ogburn against the Continental Casualty Company on an accident and death policy. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Plea 6 after quoting part 1 of the contract as set out in the opinion, avers that the insured did not receive personal bodily injuries which caused at once and continuously after the accident a total inability to engage in any and every labor or occupation. The demurrers to this plea were that it is not shown that the provisions referred to would be operative in case of loss by death. It is affirmatively shown in said plea that the provision therein set out is not applicable in the case of death. Plea 4 sets out the policy requirement as to proof of injury, fatal or nonfatal, and avers a failure to comply therewith, with the further averment of the clause of strict compliance in said policy. The third replication to this plea sets up a waiver of the benefit of this provision, in that there was an absolute denial of liability, on the ground that the insured died of a disease, and not as the result of an accident. The seventh replication sets up that proof of death was made, and no objection was ever made to the sufficiency of such proof, but that the proof was retained without objection made within a reasonable time.

Charles A. Calhoun, Manton Maverick, and M. P. Cornelius, for appellant.

Black &amp Davis and Riddle, Ellis, Riddle & Pruett, for appellee.

ANDERSON J.

"Insurance policies are framed by insurance companies with great care and caution, with a view of limiting their liability as much as possible; and in most cases impose conditions and duties on the assured, to be performed with marked particularity. They should be and are liberally construed in favor of the assured, which conditions and provisions are strictly construed against the insurer." Piedmont Co. v Young, 58 Ala. 486, 29 Am. Rep. 770. And this rule is especially followed in dealing with forfeiture clauses of insurance contracts. Equitable Co. v. Golson, 159 Ala. 508, 48 So. 1034. On the other hand, courts are not at liberty to make new contracts for parties, and where the language is unambiguous, and but one reasonable construction of the contract is possible, the court must expound it as made, however hard it may operate on the parties; for in contracts of insurance, as in other contracts, the rights of the parties are determined by the terms of the instrument as far as they are lawful. 1 Encyc. L. & P. 323.

Part 1 of the contract in question, being the insuring clause for accident, says: "If the insured while this policy is in force shall receive personal bodily injury (suicide sane or insane not included) which is effected directly and independently of all other causes through external, violent and purely accidental means, and which causes at once and continuously after the accident total inability to engage in any and every labor or occupation, the company will pay indemnity for loss of life, limb, limbs, sight or time resulting therefrom." Part 2, in fixing the compensation for loss of life, limb, etc., says: "If, within ninety days from the date of the accident, any one of the following losses shall result necessarily and solely from such injury as is described in part 1, the company will pay subject to the provisions of part 6." It then proceeds to fix the sum for loss of life, limbs, etc. It must be observed that the death loss is expressly referable to such injury as is described in part 1, and which must have resulted necessarily and solely therefrom, and within 90 days after the infliction of same that is, the assured must have sustained an injury, through external, violent, and purely accidental means, and which caused at once and continuously after the accident total inability, etc., and his death must have resulted within 90 days from such an accident so sustained in order to entitle the beneficiary to the death claim as provided by part 2.

Plea 6 is couched in the language of the policy contract, and the demurrers, which make the point that the accident as described in part 1 has no application to the death feature of the contract, should have been overruled, and the trial court committed reversible error in sustaining same. In the case of ...