Jones v. Pennsylvania Cas. Co.

• Decision Date: 12 December 1905
• Citation: 52 S.E. 578,140 N.C. 262
• Parties: JONES v. PENNSYLVANIA CASUALTY CO.
• Court: North Carolina Supreme Court

52 S.E. 578

140 N.C. 262

JONES v. PENNSYLVANIA CASUALTY CO.

Supreme Court of North Carolina

Dec 12, 1905

Appeal from Superior Court, McDowell County; Justice, Judge.

Action by Nelson C. Jones against the Pennsylvania Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a health policy insured against certain named diseases including blood poisoning, and a proviso declared that the policy should not apply to any disease which was the result of injury, the proviso was inoperative as to blood poisoning which always results from injury.

Action on insurance policy for an indemnity of $5 per week for 26 weeks. A jury trial was waived, and from the findings of fact by the court it appeared that the plaintiff, being the holder of an ordinary health policy in defendant company, on the 29th of November, 1902, received a small scratch on the hand that the same began to inflame, blood poisoning developed and on December 3, 1902, the plaintiff's arm was of necessity amputated; that the plaintiff was rendered incapable of performing any kind of manual labor and continued so disabled for a term of 26 weeks, for which time he sues for the stipulated indemnity; that all the formal preliminary requirements have been complied with on the part of the plaintiff, and proof of the plaintiff's disability for 26 weeks duly filed with defendant company. There was judgment for the plaintiff at the contract rate, and the defendant excepted and appealed.

J. W. Pless, for appellant.

D. E. Hudgins, for appellee.

HOKE J. (after stating the case).

The policy (section 4) contains a definite stipulation for indemnity at $5 per week, not to exceed 26 weeks, in case of disability arising from certain specified diseases; blood poisoning being one expressly named. This disease being evidently the direct and controlling cause of the disability as a matter of first impression the right of the plaintiff to recover would seem to be clear. The policy, however, having given this assurance of indemnity, then takes up the matter of provisos by way of restriction, and stipulates further: (1) That this policy shall not apply to any illness or disease whatever except those named. (2) That it shall not apply to any disease which is complicated with, or results from, any disease not herein named, etc. (3) Nor to any disease or illness which results from injury, etc. (4) Nor in effect to any disease which develops or results from those diseases that are named, etc. There are many other limitations and restrictions in the policy, for...