Continental Cas. Co. v. Hardenbergh

• Decision Date: 22 December 1919
• Docket Number: 20887
• Court: Mississippi Supreme Court
• Parties: CONTINENTAL CASUALTY CO. v. HARDENBERGH

83 So. 278

121 Miss. 1

CONTINENTAL CASUALTY CO. v. HARDENBERGH

No. 20887

Supreme Court of Mississippi

December 22, 1919

1 INSURANCE. Validity of clause restricting recovery.

A clause in an insurance policy providing that where the accidental injury causing the loss, or the loss itself results from freezing by the insured while not engaged in his occupation, the recovery shall be limited to one-eighth the usual amount, is valid.

2 INSURANCE. Evidence sufficient to establish death by freezing.

Where the evidence showed that insured went hunting and was found next morning lying on his back with a part of one leg in a marshy hole and his body frozen, these facts did not warrant the jury in finding that his death was proximately caused by getting his foot caught, but only established that his death was caused by freezing and he was only entitled to recover one-eighth the usual amount under a policy so providing.

HON. D M. MILLER, Judge.

APPEAL from the circuit court of Copiah county, HON. D. M. MILLER Judge.

Suit by Mrs. Jennie Hardenbergh against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

G. Q. Whitfield, R. N. & H. B. Miller, Manton Maverick, M. P. Cornelius, Geo. R. Sanderson and Murphy O. Tate, for appellant.

M. S. McNeil, for appellee.

IN BANC

OPINION

SYKES, J.

The appellee, plaintiff in the circuit court, sued and recovered a judgment against the appellant for one thousand dollars for the death of her son Levy Hardenbergh, as the beneficiary under the conditions and clauses of an accident insurance policy issued by the appellant company to the deceased. The material parts of this policy are as follows:

"The Continental Casualty Company -- Incorporated by the state of Indiana as a stock company. Old Line Plan. General Office, Chicago, Illinois (hereinafter called the company) --In consideration of the warranties and agreements contained in the application hereof and the payment of premium as therein provided, does on this 24th day of December, A. D. 1917, hereby insure Mr. Levy Hardenbergh (hereinafter called the insured) in class Spl. of the company, as a water service man, in the principal sum of one hundred dollars, with weekly indemnity of ten dollars, and subject to the conditions hereinafter specified promises to pay to the insured or to his beneficiary, Jennie Hardenbergh, his mother, indemnity as scheduled below, in the event that said insured, while this policy is in force, shall receive personal, bodily injury, which is effected directly and independently of all other causes through external, violent, and purely accidental means (suicide, sane or insane, not included), and which causes at once total and continuous inability to engage in any labor or occupation, and provided that neither such injury nor inability is in consequence of nor contributed to by any bodily or mental defect, disease, or infirmity of the insured.

"Specific Indemnity.

"Part I. 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 before described, the company will pay in lieu of any other indemnity and within ninety days from the furnishing of proof: A. For loss of life, said principal sum. . . .

"Special Indemnities.

"Part III. A. In any of the losses covered by this policy and specified in parts I or II; . . . or (3) where either the accidental injury causing the loss or the loss itself results from any poison, asphyxiation or gas, or from fits, vertigo, somnambulism, or intoxication, or from sunstroke or freezing sustained by the insured while not engaged in his occupation; . . . then and in all cases referred to in this paragraph A. of part III, the amount payable shall be one-eighth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained."

This policy was in effect at the time of the death of the...