Parker v. Provident Life & Accident Ins. Co.
| Decision Date | 29 May 1933 |
| Docket Number | 32171 |
| Citation | 152 So. 583,178 La. 977 |
| Parties | PARKER v. PROVIDENT LIFE & ACCIDENT INS. CO |
| Court | Louisiana Supreme Court |
On Rehearing January 2, 1934
Appeal from Eleventh Judicial District Court, Parish of Vernon; Hal A. Burgess, Judge.
Action by Corduke Parker against the Provident Life & Accident Insurance Company. From part of the judgment in plaintiff's favor, defendant appeals.
Reversed, plaintiff's demands rejected, and suit dismissed.
Thompson & Ferguson, of Leesville, and Cline, Thompson & Lawes, of Lake Charles, for appellant.
Woosley & Cavanaugh, of Leesville, for appellee.
OPINION
This is a suit on an accident insurance policy and the appeal is from that part of the judgment in favor of the plaintiff and against the defendant for $ 100 per month, with legal interest thereon beginning December 14, 1930, for sixty consecutive months, or during the plaintiff's disability to perform any and every duty pertaining to his occupation and business, and for the further sum of $ 500 as attorney's fees and the costs of the suit. Plaintiff did not appeal from that part of the judgment rejecting his demand for double indemnity, and, as he has not answered the appeal, that issue has passed out of the case.
The material allegations of the petition are that on December 14 1930, the plaintiff suffered an accidental injury to the right side of his abdomen, which produced a complete inguinal hernia that has continuously and totally incapacitated him from performing any and every duty pertaining to his occupation and business, and he seeks recovery under the provisions of sections (a) and (b) of part IV of the policy. These sections are as follows:
The defendant excepted to the petition as not disclosing a cause of action. The exception was overruled and answer was filed. In its answer the defendant denies all of the allegations of fact stated supra, and on the trial proved by a preponderance of the evidence, and by disinterested witnesses, that from the date of the alleged accident to some time in the following February, when the mill closed down, the plaintiff continuously performed the duties his vocation and business required of him, and drew his salary regularly, without diminution thereof, for about two months. The fact is, therefore, established that the plaintiff lost notime, and that no total disability, within the intendment of the policy, manifested itself during those months. It is true that the plaintiff developed a hernia that necessitated his avoidance of work requiring the lifting of heavy objects, but the plaintiff's occupation and business was that of shop foreman, and, in that capacity, it was optional with him whether he lifted or abstained from lifting such objects. Moreover, the strain which caused the hernia, neither as to time or place, is shown with any degree of certainty. Plaintiff says that he felt the pain in his left side on December 14, 1930, while assisting, by the use of a lever, in lifting a heavy object, but he also says that he felt the same pain on a previous occasion while loading pipe in a freight car.
It should be noted that this is a suit for the recovery of indemnity insurance, and that recovery is possible only when the case, as presented, comes within the clauses of the contract relied upon. We well understand that Parker v. Weber-King Mfg. Co., 19 La.App. 177, 139 So. 660, was decided consistently with the liberal construction the law requires the courts to give to the Employers' Liability Act (Act No. 20 of 1914, as amended), but the principles applicable to that class of cases have no application to the case before us.
We have read the record carefully and find that plaintiff does not allege, neither has he offered any evidence to prove, that his hernia was caused solely by external, violent, and accidental means. All that the policy sued upon insures against is stated in part 1 thereof as follows:
"The effects resulting directly and exclusively of all other causes, from bodily injuries sustained during the life of this policy, solely through External, Violent and Accidental Means (excluding suicide, sane or insane, or any attempt thereat)," etc.
On the facts disclosed by the record we find that from December 14, 1930, until some time in the following February, the plaintiff lost no time, was on the job assigned to him daily, and received his regular wages of $ 150 per month; that he has not proved with reasonable certainty the time he suffered the injury which caused the hernia for which he claims indemnity; and that he has not proven, or attempted to prove, that the hernia was caused by violent and accidental means.
It is the accepted rule that insurance contracts are construed against the insurer, and a liberal interpretation exempting or limiting the insurer's liability is not permitted. The rule is applicable where there is ambiguity in the contract, or where doubt of the essential facts to be established results from the state of the proof. Whether an injury results from violent and accidental means or from means employed in the usual and accepted manner are distinct propositions. The plaintiff was insured against the effects of the former, but not against the effects of the latter.
In the case of Riley v. Interstate Business Men's Accident Association (Iowa) 152 N.W. 617, 619, the court said:
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