Miles v. Cas. Co. of America

• Decision Date: 05 December 1911
• Citation: 203 N.Y. 453,96 N.E. 744
• Parties: MILES v. CASUALTY CO. OF AMERICA.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 453

96 N.E. 744

MILES

v.CASUALTY CO. OF AMERICA.

Court of Appeals of New York.

Dec. 5, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by B. T. De Witt Miles against the Casualty Company of America. Judgment of the Fourth Appellate Division (136 App. Div . 908,120 N. Y. Supp. 1135) affirming a judgment for plaintiff (115 N. Y. Supp. 1). Defendant appeals. Reversed, and new trial ordered conditionally; otherwise modified and affirmed.

John D. Teller, for appellant.

John L. Hunter, for respondent.

HAIGHT, J.

On the 5th day of July, 1905, the defendant, in consideration of a premium of $60 paid by the plaintiff, issued to him a disability policy in which the company undertook to insure the plaintiff against loss of life, limb, sight, or time, in the principal sum of $5,000 and for a weekly indemnity of $25 under the terms of the agreement specifically set forth for a period of 12 months. The policy contained, among other provisions, the following: ‘G. Blindness and paralysis indemnity. In case the assured shall, during the term of this insurance, contract any disease that shall not result in death, but shall result independently of all other causes, within one year from the date of this insurance, in the irrecoverable loss of the sight of both eyes or in permanent paralysis, whereby the assured shall entirely lose the use of both hands or of both feet or of one hand and one foot, and is thereby rendered permanently unable to engage in any occupation for wages or profit, the company will pay to him, upon the filing at the company's home office of satisfactory proofs of the continuance of such blindness or paralysis for fifty-two consecutive weeks, one-half the principal sum.’ And it is also further provided: ‘H. Sickness indemnity. If bodily disease or illness shall wholly prevent the assured from performing the duties pertaining to his occupation for not less than one week, the company will pay him the weekly indemnity for the period of disability during which he shall be necessarily confined to the house, but for not more than twenty-six consecutive weeks.’ On the 12th day of November, 1905, the plaintiff was stricken with paralysis, and was totally disabled for more than 52 consecutive weeks thereafter. Notice of such illness was given to the defendant two days after the stroke. Shortly afterward the defendant canceled the policy issued to the plaintiff as of the date of its issue, and returned the premium paid to him, and wrote him that the policy had no force, and that the plaintiff had no claim against the defendant, and that the incident was closed so far as the company was concerned, and later on refused to issue blanks for the filing of proof of loss, upon the ground that it would do no good to file any proofs, and that the company would have nothing whatever to do with it. Subsequently, however, proofs of loss were made and filed with the company, in which the plaintiff claimed the right to recover $650 for 26 weeks of disability under clause H of the policy. On the 4th day of September, 1906, this action was begun by the service of the summons upon the defendant, but the complaint was not served until the 21st day of April, 1908, and it set forth a cause of action under clause G of the policy which we have already quoted. The defendant answered, admitting the issuing to the plaintiff of the policy, but denied that it had knowledge or information sufficient to form a belief as to the disability, and denied generally the other allegations of the complaint, and alleged false representations, breach of warranty, and full payment.

Upon the trial the defendant's attorney asked the court to hold that no recovery could be had by the plaintiff under clause G of the policy, and that the trial should be confined to his claim for $25 a week for 26 weeks, amounting to $650. This the court refused, and the trial proceeded upon the claim for one-half of the principal sum under the paralysis clause, to wit, the sum of $2,500. At the conclusion of the plaintiff's evidence, the defendant again moved for a direction of a verdict as to that cause of action, and again, at the conclusion of the evidence of both parties, the motion was renewed on the specific ground that at the time of the commencement of the action no liability on the part of the defendant had accrued. These motions were denied and exceptions were taken....