Kentucky Life & Acc. Ins. Co. v. Franklin

• Decision Date: 18 December 1897
• Parties: KENTUCKY LIFE & ACCIDENT INS. CO. v. FRANKLIN.
• Court: Kentucky Court of Appeals

43 S.W. 709

102 Ky. 512

KENTUCKY LIFE & ACCIDENT INS. CO. v. FRANKLIN.

Court of Appeals of Kentucky.

December 18, 1897

Appeal from circuit court, Hickman county.

"To be officially reported."

Action by Thomas L. Franklin against Kentucky Life & Accident Insurance Company on an accident insurance policy. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. L Husbands, for appellant.

Thomas H. Hines, Thomas G. Poore, and E. T. Bullock, for appellee.

HAZELRIGG J.

This action was brought by appellee for indemnity under an "accident" insurance policy issued to him by the appellant, in which he was insured as a "grocer, with desk and counter duties." He was seriously injured on March 24, 1894, by the accidental discharge of a shotgun in his own hands, or which fell from his own hands, while out hunting birds and other game. The provisions of the policy are to the effect that, if the insured sustains bodily injuries effected through external, violent, and accidental means, which alone produced death, the company would pay the wife of the insured the principal sum of $5,000; and if by such means he sustained injuries which should immediately and wholly disable him, and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he is insured, then, "on satisfactory proof of such injuries, he [shall] should be indemnified against loss of time thereby in a sum not exceeding $25 per week, or the money value of his time, for such period of continuous total disability as shall immediately follow the accident and injuries aforesaid, not exceeding, however, fifty-two consecutive weeks from the time of the happening." There are many other provisions of the policy, but with them we are not now concerned. It is admitted that the insured was wholly disabled for many weeks, and that the means were accidental. The suit was filed on July 3, 1894, for the weekly indemnity provided for in the policy, and sought to recover the sum of $25 per week from the date of the injury up to the filing of the petition. The defense of the company was: (1) Under the contract, the language of which on the point involved we have quoted, the weekly indemnity was not to be paid until the expiration of the 52 weeks after the accident, if the total disability continued that long, or at least it was not due until such disability ceased, and therefore this suit was prematurely brought. This question was raised by demurrer to the petition, that pleading showing that the total disability had not ceased. (2) That one of the conditions of the policy sued on was that the insured "would use due diligence for his personal safety and protection," whereas he had not done so, but, on the contrary, at the time of the accident, "he was sitting on a fence, with a double-barreled shotgun in his hands, with one or both hammers cocked, when a rail turned, and he fell off, and the gun was discharged, causing the injury," etc. (3) That the plaintiff was only insured as a "grocer, with desk and counter duties," and that a condition of the policy was that "if the insured was injured or disabled while doing or performing...