Pennington v. Pac. Mut. Life Ins. Co.

• Decision Date: 23 May 1892
• Citation: 52 N.W. 482,85 Iowa 468
• Parties: PENNINGTON v. PACIFIC MUT. LIFE INS. CO.
• Court: Iowa Supreme Court

85 Iowa 468

52 N.W. 482

PENNINGTON

v.PACIFIC MUT. LIFE INS. CO.

Supreme Court of Iowa.

May 23, 1892.

Appeal from superior court of Creston; S. R. DAVIS, Judge.

The plaintiff is by occupation a locomotive fireman. The defendant is a life and accident insurance company, with its headquarters or principal place of business at San Francisco, in the state of California. On the 21st day of May, 1889, the defendant issued to the plaintiff its policy of insurance for the term of one year. The plaintiff claims that on the 2d day of July, 1889, he was, while in the line of his employment, accidentally injured, so that for 30 weeks thereafter he was entitled to receive from the defendant the sum of $10 per week upon said policy, by reason of the disability resulting from said accident. The defendant denied the liability. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.McDill & Sullivans, for appellant.

Thos. L. Maxwell and Copenheffer & Allen, for appellee.

ROTHROCK, J.

1. The injury for which the plaintiff sought recovery is stated in his petition in substance as follows: He was a locomotive fireman in the employ of the Chicago, Burlington & Quincy Railway Company, with his residence at the city of Creston, and his run over the railroad was from Ottumwa to Creston. While in the line of his duty on a trip he was violently and accidentally injured by the sudden lurching of the locomotive, “while he was in a strained position, attempting to clean grates of said locomotive, which was part of the duty of said plaintiff as a fireman;” and that by reason of said accident he was greatly injured in his back, which was so wrenched, bruised, and strained that he was immediately disabled wholly from transacting any and every kind of business in connection with his occupation. The defense interposed by the answer was based upon several grounds. It will not be necessary to set them out in detail, as they are all involved in the points made by counsel in their argument, and will be noticed in the consideration of the case. It is claimed by counsel for appellant that the verdict of the jury is contrary to the evidence, and that a new trial should have been ordered on that ground. It is sufficient to say of this objection to the judgment that a careful examination of the evidence has led us to the conclusion that the judgment should not be reversed upon this ground. It is apparent from the line of argument of appellant's counsel that the cause was resisted in the court below, and is presented to this court at a cost probably equal to the amount involved in the case, on the ground that the plaintiff's claim is a mere sham and pretense, and without merit. That is a feature of the case which we are precluded from determining, because there is a fair conflict in the evidence on every disputed question of fact in the case.

2. We come now to certain questions which arise on the face of the policy, and the application for insurance upon which the policy was issued. These instruments are so voluminous that it is impracticable to set them out at length in an opinion. It is provided in the application that the “insurance shall not cover disappearances, nor injuries of which there is no visible, external mark upon the body of the insured.” It is conceded that there is no evidence that there was any visible mark upon the body of the plaintiff at the very time of the injury. It was a strain, and the immediate effects of the injury would not probably be apparent or visible immediately. The court instructed the jury that it would be sufficient for the plaintiff to show that the injury was visible soon after the accident, and as a consequence of the injury. It is contended that this is an erroneous construction of the contract of insurance, and that there was in fact no evidence that there was any visible mark indicating an injury at any time. We think there was evidence from which the jury could fairly find that the effects of the strain were visible within a few days after the accident. There is nothing in the clause of the contract above set out which requires that the effects of the accident shall be visible immediately. Such a construction of the contract would defeat all claims for internal injuries not apparent to the eye at once, and would render such a policy in many cases the means of defeating just claims for indemnity. The contract does not contemplate that there must be bruises, contusions, or lacerations on the body, or broken limbs. See Association v. Barry, 131 U. S. 100, 9 Sup. Ct. Rep. 755. In our opinion, the instruction complained of was correct.

3. Another objection arising on the face of the contract is raised upon the following grounds: The policy provides that, where the accidental injury creates...