Kelsey v. Cont'l Cas. Co.

• Citation: 131 Iowa 207,108 N.W. 221
• Parties: KELSEY v. CONTINENTAL CASUALTY CO.
• Decision Date: 10 July 1906
• Court: United States State Supreme Court of Iowa

131 Iowa 207

108 N.W. 221

KELSEY

v.CONTINENTAL CASUALTY CO.

Supreme Court of Iowa.

July 10, 1906.

Appeal from District Court, Dubuque County; Fred O'Donnell, Judge.

Action at law upon a policy of accident insurance. Verdict and judgment for plaintiff, and defendant appeals. Reversed.Longueville, Kintzinger & Longueville, for appellant.

Bonson, Kenline & Roedell, for appellee.

WEAVER, J.

The policy in suit insures the plaintiff against personal injury in his occupation as locomotive fireman, when such injuries arise from purely accidental causes, and, solely and independently of all other causes, necessarily result: (1) In the death of the insured; in which case the company undertakes to pay to his wife an indemnity of $1,000; (2) In the loss of one hand or one foot; one-half of the death indemnity will be paid to the insured. (3) In the loss of one eye; one-fourth of the death indemnity will be so paid. (4) In the loss of both hands or both feet or one hand and one foot; the whole of the indemnity will be so paid. (5) In the loss of said members of the body, where the policy does not provide for death indemnity, weekly benefits will be paid. (6) “In the loss of life, limb, sight, or time, as above provided, from unnecessary exposure to danger, or to obvious risk of injury, or from hernia, orchitis, fits, vertigo, somnambulism,” etc., “then in all such cases the limit of the company's liability shall be one-tenth the amount which would otherwise be payable under this policy, anything herein to the contrary notwithstanding.” (7) Immaterial to the present case. (8) “In this total loss of time by reason of injury not otherwise herein provided for, at once arising from inability to engage in any business or occupation, a weekly indemnity of $15 for such period of continuous loss of time, not exceeding fifty-two weeks.”

During the period covered by his policy the locomotive engine on which plaintiff was employed was struck by another engine throwing plaintiff violently down upon the shovel sheet producing hernia upon his right side and bruising him to some extent otherwise. Within a year after the date of such injury this action was begun. The petition sets up the issuance of the policy and its terms, and plaintiff's injury as aforesaid, and further avers that by reason of the language of the policy and representations made to him by defendant's agent at the time the application was taken, he was led to understand and believe, and did understand and believe, that defendant undertook and agreed to pay a weekly indemnity of $15 for his loss of time not exceding 52 weeks caused by bodily injuries, including rupture produced through external violence and accidental causes and necessarily resulting in his total loss of time, and that the hernia mentioned in the sixth clause of the policy referred solely to hernia existing at or before the date of the injury and not directly produced by an accident occurring while the policy was in force. It is further alleged that by reason of the injuries received by the plaintiff as aforesaid he suffered a total loss of time for a continuous period of 30 weeks for which he demands judgment under the provisions of the eighth clause of the policy hereinbefore quoted. A motion to strike from the petition the allegation as to representations made by the agent having been overruled, the defendant answered admitting its corporate capacity, but denying all other allegations of the petition. Upon the trial in the district court the plaintiff as a witness in his own behalf was permitted, over the objection of the appellant, to testify that the agent taking his application for the policy in suit assured him that if hurt by purely accidental means he would receive an indemnity for loss of time resulting therefrom in the sum of $15 per week and that where hernia was found, if it existed, prior to the accident, the indemnity would be but one-tenth of the full weekly benefits but where such hernia was produced by the accident full benefits would be paid. Upon the point raised by the objection to this testimony the court instructed the jury as follows:

“(8) If you believe from a preponderance of the evidence that plaintiff at the time he was solicited to take a policy in the defendant company, by its agent, Coulter, he was informed by said Coulter that in case he was injured and the injury resulted in a hernia, that he could recover the $15 indemnity for total loss of time, and that plaintiff relied on such statement and so understood the policy to mean, from such statement, of said agent, then if you believe plaintiff was injured by external, violent, and purely accidental causes, and the injury resulted solely and independently of all other causes except the accident, and plaintiff suffered a hernia from such injury or as part of the injury, and by reason of such hernia he suffered a total loss of time during which time he was unable to engage in any...