Pervangher v. Union Casualty & Surety Co

• Decision Date: 28 November 1904
• Citation: 85 Miss. 31,37 So. 461
• Parties: MAZARA PERVANGHER v. UNION CASUALTY & SURETY CO
• Court: Mississippi Supreme Court

37 So. 461

85 Miss. 31

MAZARA PERVANGHER v. UNION CASUALTY & SURETY CO

Supreme Court of Mississippi

November 28, 1904

November 1904

FROM the circuit court of Warren county HON. GEORGE ANDERSON Judge.

Mrs Pervangher, appellant, was plaintiff, and the Casualty &amp Surety Company, appellee, defendant in the court below. From a judgment in defendant's favor, sustaining a demurrer to the declaration and dismissing the suit, the plaintiff appealed to the supreme court.

The case was once before in the supreme court, and is reported. Pervangher v. Union Casualty & Surety Co., 81 Miss 32.

The defendant company issued a policy to Nazaro Pervangher, insuring him "against loss effected, solely, directly, and independently of all other causes, by bodily injuries sustained through external, violent, and accidental means." The policy provided that, if death should result from such injury within ninety days, Mrs. Pervangher, his mother, the appellant, should be paid $ 500. Mrs. Pervangher filed her declaration in three counts. The first count charges that the insured died April 14, 1901, within ninety days of the accident which caused his death, which was effected, solely, directly, and independently of all other causes, by bodily injury sustained through external, violent, and accidental means--to wit, injury to his lung or lungs, or some part thereof, or some part of his body adjacent to or connected with his lung or lungs, or the rupture of some blood vessel, caused by being strained in lifting or handling some heavy machinery or heavy substance on the 26th of February, 1901. The second count alleges the death as set out in the first, and adds that the death was caused from bodily injuries to his lung or lungs, or stomach, or some part thereof, or some part of his body adjacent thereto, connected with his lung or lungs, or stomach, or the rupture of some blood vessel, caused by being strained in lifting or handling some heavy machinery or heavy substance, and the said substance, while being so lifted or handled, fell against or struck the said assured, causing the injury hereinbefore set out and described. The third count charges the death of the assured as in the first count, and alleges that his death resulted from bodily injuries sustained through external, violent, and accidental means, in an injury to his lung or lungs, or stomach, or some part thereof, or some part of his body adjacent thereto, or connected with his lung or lungs, or stomach, or the rupture of some blood vessel, caused by some accident, the nature of which is unknown to plaintiff. The policy was made an exhibit to the declaration.

Reversed and remanded.

Dabney & McCabe, for appellant.

All three of the counts in the declaration are good, under the authorities. We know of no reason why recovery should not be had on an accident policy simply because the injury is internal and its exact location cannot be fixed without a post mortem examination, and, in case of failure to hold such an examination, that recovery could not be had on the policy.

In support of our position we cite: 1 Cyc., 248, 249, 250, 251; 1 Am. & Eng. Ency. Law (2d ed.), 294, et seq.; Ins. Co. v. Gerisch, 54 Am. St. Rep., 486; Horsfall v. Pac. Mut. Life Ins. Co., 22 Ins. Law Journal, 892 (s.c., 63 L. R. A., 425).

McLaurin, Armistead & Brien, for appellee.

It is not sufficient to allege in a declaration in a suit on an accident policy that the assured was injured in his lung or lungs, or stomach, or blood vessels, or some part of his body adjacent thereto, by being strained in lifting or handling some heavy machinery or substance. It leaves open every kind of an accident to be proved on the trial without acquainting the defendant with what it is called on to meet.

There is nothing in the declaration showing that the injury complained of resulted in the ordinary and usual conduct or business of the assured. For all that appears on the face of the declaration, the assured might have been experimenting in the alleged lifting to see how much he could lift when the alleged accident happened to his lung or lungs, or stomach or some part of his body adjacent thereto, or the rupture of some blood vessel. The policy sued on in its conditions expressly excepts liability from those "accidental injuries, fatal or otherwise, resulting from voluntary exposure to an avoidable danger." The...