Miller v. Fidelity & Casualty Co.

• Decision Date: 22 November 1899
• Citation: 97 F. 836
• Parties: MILLER v. FIDELITY & CASUALTY CO.
• Court: U.S. District Court — Southern District of New York

97 F. 836

MILLER v. FIDELITY & CASUALTY CO.

United States Circuit Court, S.D. New York.

November 22, 1899

E Spencer Miller, for plaintiff.

S Sidney Carrere, for defendant.

WHEELER District Judge.

The policy in question runs that the defendant--

'Does hereby insure Hobart Miller, residing in Coeburn, county of Wise, and state of Virginia, by occupation lawyer, classified by the company as A special, for the term of 12 months,' 'in the amount of five thousand dollars, principal sum,' 'against bodily injuries sustained through external, violent, and accidental means, as follows: If death shall result within ninety days from such injuries independently of all other causes, the company will pay the principal sum of this policy to the legal representatives of the assured. ' 'This insurance does not cover disappearances; nor war risk; nor voluntary exposure to unnecessary danger; nor injuries, fatal or otherwise resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled, nor injuries fatal or otherwise received while or in consequence of having been under the influence of, or affected by, nor resulting directly or indirectly from, intoxicants, anaesthetics, narcotics, sunstroke, freezing, vertigo, sleepwalking, fits, hernia, or any disease or bodily infirmity.'

The complaint alleges that the policy was in full force and effect on the 1st day of July, 1898, and:

'Fourth. That on the 1st day of July, 1898, at Coeburn, Wise county, Virginia, said Hobart Miller accidentally sustained bodily injuries by swallowing certain hard, pointed, and resistant substances of food, which substances accidentally, by reason of the force and manner with which they came in contact with the intestinal tissue of the said Hobart Miller, caused by illness from which the said Hobart Miller otherwise had recovered, of which weakened condition the said Hobart Miller had no knowledge, so perforated and wounded his intestinal canal as to cause his death at said Coeburn within ninety days after the receipt of the injuries aforesaid, to wit, on the 11th day of July, 1898.'

The hard, pointed, and resistant substances of food appear from the allegations to have been external, violent, and accidental means, for they originated outside of the body and were accidentally violent, although the accidental effect took place within. The insurance is not, by the first clause quoted,...