General Acc., Fire & Life Assur. Co. v. Homely
| Decision Date | 09 December 1908 |
| Citation | 71 A. 524,109 Md. 93 |
| Parties | GENERAL ACCIDENT, FIRE & LIFE ASSUR. CO. v. HOMELY. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott Judge.
Action by Harriet Homely against the General Accident, Fire & Life Assurance Company. From a judgment for plaintiff, defendant appealed. Affirmed.
Argued before BOYD, C.J., and BRISCOE, SCHMUCKER, BURKE, THOMAS, and WORTHINGTON, JJ.
Charles W. Main, for appellant.
Jefferson D. Norris, for appellee.
The appellee sued the appellant company in assumpsit in the superior court of Baltimore city upon a policy of insurance issued by it upon the life of her son, George H. Gardiner. The verdict and judgment below were in her favor for the full amount of the policy, and the company took the present appeal.
The policy sued on is of the now familiar class which furnish indemnity to a designated beneficiary for loss accruing from accidental and external injuries, fatal or otherwise, to the assured. The expressions employed in the earlier part of the policy limit the liability of the company to losses resulting from external accidental agencies "independently of all other causes," but in a later clause of the document a modified liability is distinctly assumed for loss from "injury fatal or otherwise or disability due wholly or in part, directly or indirectly, to disease or bodily infirmity." The portion of the policy providing for that modified responsibility of the company is known as clause "h," and is in the following language: "In event of injury or loss, fatal or otherwise, of which there shall be no external or visible mark on the body, or injury fatal or otherwise, or disability due wholly or in part directly or indirectly to disease or bodily infirmity, *** then and in all such cases referred to in this paragraph the limit of the company's liability shall be one-fifth of the amount which would otherwise be payable under this policy anything herein to the contrary notwithstanding." The declaration in the case before us only avers an insurance against death resulting directly and independently of all other causes from bodily injuries effected through external violent, and accidental means, but declares upon the policy designating it by its number and date.
There is but one bill of exceptions in the record, and that is to the court's action on the prayers. The plaintiff offered but one prayer, which the court granted. It asked the court to instruct the jury "that if they shall find from the evidence that on October 20, 1906, George H. Gardiner was insured in the defendant company against death by accident and that upon that date the said George H. Gardiner sustained an injury through being struck by a bale of hay upon the back or side, and that upon the day following said accident there was a welt upon his back, and that on the fourth day after the accident an examination of the said Gardiner by two practicing physicians disclosed a tremor, tension, and sensitiveness of the muscles of the back, and that on the 27th day of October, 1906, the said George H. Gardiner died of acute nephritis, caused by the said accident, and, if they shall further find that said Gardiner was at the time of said accident and until his death free from disease, except acute nephritis, caused by the accident, and that from and after the said accident he was unable to perform his duties, then their verdict may be for the plaintiff." The court rejected the defendant's first and third prayers, and granted its second prayer as modified and its fourth prayer as originally offered. The first of these prayers asked the court to take the case from the jury for want of legally sufficient evidence to entitle the plaintiff to recover. The second placed upon the plaintiff the burden of proof that the death of the insured was caused by external, violent, and accidental means, and concluded with the words: "And, if those injuries alone did not occasion his death, then the verdict must be for the defendant." The court struck out the concluding words, and granted the prayer as thus modified. The third prayer declared that if the jury found from the evidence that at the time of the accident the insured was suffering from a pre-existing disease, in the absence of which the accident would not have caused his death, and that he died because the accident aggravated the disease or the disease aggravated the effects of the accident, then their verdict must be for the defendant. There is evidence in the record tending to show the following state of facts: The assured was an unmarried colored man about 40 years of age, who had been employed for more than 6 years prior to his death at the Warwick stables in Baltimore city. He was a person of unusual strength, in apparently good health, and was uniformly industrious and attentive to his duties. He took an occasional drink of...
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