Schwindermann v. Great E. Cas. Co.

• Decision Date: 15 December 1917
• Citation: 165 N.W. 982,38 N.D. 584
• Parties: SCHWINDERMANN v. GREAT EASTERN CASUALTY CO.
• Court: North Dakota Supreme Court

38 N.D. 584

165 N.W. 982

SCHWINDERMANN

v.GREAT EASTERN CASUALTY CO.

Supreme Court of North Dakota.

Dec. 15, 1917.

Syllabus by the Court.

A provision in a casualty insurance policy to the effect that the insurance does not cover loss from injuries resulting directly or indirectly from hernia is held not applicable where the insured received an injury by falling, from which hernia resulted.

Evidence showing that the agent of a casualty insurance company solicited an application from the insured while he was working at his trade as a boiler maker in the roundhouse of a railroad company where he was employed, and that, after preliminary proofs of loss had been supplied, the company wrote denying liability upon untenable grounds, and making no reference to the circumstances surrounding the accident, is held sufficient to support a finding that the insurance company waived the benefit of a provision in the policy exempting it from liability to an employé while on duty at the roundhouse and repair shop.

A provision in a casualty insurance policy to the effect that no claim shall be valid for more than one of the losses specified is held not to limit the insurance under different sections of the policy.

Appeal from District Court, Stutsman County; J. A. Coffey, Judge.

Action by Joseph Schwindermann against the Great Eastern Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.John W. Carr, of Jamestown, for appellant. M. C. Freerks, of Jamestown, for respondent.

BIRDZELL, J.

This is an action upon a policy of casualty insurance which was, by stipulation, tried before the district court of Stutsman county without a jury, resulting in a judgment in favor of the plaintiff for $501.97, interest from August 21, 1916, at 6 per cent. and costs. The defendant appeals from the judgment. The fact are as follows:

The plaintiff applied to the defendant for certain accident and sickness insurance, and on August 7, 1915, the defendant company issued a policy for which plaintiff paid a premium of $24. The application was solicited by an agent of the defendant company while the plaintiff was at work at his trade, that of a boiler maker, in the roundhouse of the Northern Pacific Railroad Company in Jamestown, and is as follows:

“I hereby apply for a policy to be based upon the following representation of facts:

I understand and agree that the right to recovery under any policy which may be issued upon the basis of this application shall be barred in the event that any one of the following statements, material either to the acceptance of the risk or the hazard assumed by the company, is false, or in the event that any one of the following statements is false and made with intent to deceive. I agree that this application shall not be binding upon the company until accepted either by the secretary at the home office, or by an agent duly authorized to issue policies.

My full name is Joseph Schwindermann.

My age is 24 years, 1 month; height, 5 ft. 9 1/2 inches; weight, 174.

My address is: No. -----; town-Jamestown; state-North Dakota.

The duties of my occupation are (describe fully): Boiler maker.

Beneficiary (full name): Charles Schwindermann. Relationship: -----. Address-St. Paul, Minn.

Whom to notify in case of accident: Name-Charles Schwindermann. Address-St. Paul, Minn.

No application for accident, health, or life insurance has been declined or policy canceled, except as follows: None.

I have never received or been refused indemnity for any accident or illness, except as follows: None.

My habits are temperate. I have no impairment of sight or hearing, and have never been ruptured, except as follows: None.

I have not had any medical attendance during the past five years, except as follows: None.

I have never had diabetes, kidney disease, syphilis, or any disorder of the brain, spine, or nervous system, and am in whole and sound and healthy condition, mentally and physically, except as follows: In A1 health.

Dated at Jamestown, N. D., this 31st day of July, 1915.

[Signed] Joe Schwindermann.”

On November 2, 1915, the plaintiff slipped on a wet cement floor in the roundhouse and was injured. The injury which he claims to have received was a hernia for which he was later operated upon in a hospital at Brainerd, Minn. He was discharged from the hospital on November 28th, after which time, according to the testimony of the attending surgeon, there was no further occasion for treatment. But it was necessary that he should refrain from working for a considerable period of time thereafter. Some time after the plaintiff's injury was received he notified the defendant company, in reply to which notice he received the following letter:

“Great Eastern Casualty Company, 56 John Street.

New York, Dec. 10th, 1915.

Mr. Joseph Schwindermann, 1110 7th Avenue, Brainerd, Minn.-Dear Sir: We are in receipt of a preliminary proof in your claim and note that your disability commenced on November 2d. You will note by referring to your policy that it requires that written notice of illness must be furnished to the company within ten days from the beginning of the illness disability, and that written notice of the accident must be furnished to the company within twenty days from the date the injuries are received. As you failed to comply with the requirements of your policy, we regret that you have no claim against us.

We further note that your disability was caused by hernia, and we beg to refer you to additional provision B of your policy, wherein you will note that protection is distinctly debarred for hernia.

Yours very truly,

C. S. Wilson, Assistant Supt. Claim Dept.

FEW-MK.”

[1] The appellant relies for reversal upon the effect of certain provisions in the policy of insurance. The first provision relied upon is subdivision B of the “Additional Provisions.” This subdivision is as follows:

“This insurance does not cover disappearance, or suicide or any attempt thereat, sane or insane, or loss from injuries fatal or otherwise, except drowning, of which there shall be no external and visible contusion or wound on the exterior of the body at the place of injury, the body itself in case of death not to be deemed such, or from injuries, fatal or otherwise, resulting wholly or in part, directly or indirectly, from, or wholly or in consequence of, being affected by intoxicants, narcotics, anæsthetics, gas, corrosives, poison, infection, poisonous substances, sunstroke, freezing, vertigo, fits, insanity, somnambulism, hernia, war, riot, strikes, duelling, fighting, wrestling, racing, football or polo playing, unnecessary exposure to obvious danger, handling any explosive, violating law, resisting arrest, being in or on any locomotive, freight or hand car, or while violating law or the rules of a corporation, or the rules of a public carrier affecting the safety of its passengers, or while on the right of way, bridge, trestle, or other property of a railway corporation other than stations, platforms, and regular crossings prescribed by law, not being at the time a passenger, any altercation or quarrel, or intentional injury inflicted by himself or any other persons, sane or insane, or while in or on or attempting to get in or out of any ærial machine or conveyance or while participating in any motor, vehicle, speed, or endurance contest.”

It is contended that the effect of the foregoing provision is to render the policy entirely inapplicable where the injury resulted wholly or in part, directly or indirectly, from hernia. Such is the language of the provision quoted, and, under the universal rule for the interpretation of clauses in insurance policies limiting liability, the language in question is to receive a strict construction against the insurance company. Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S. W. 745, 64 L. R. A. 349, 104 Am. St. Rep. 857, 1 Ann. Cas. 252. The limitation is not to be carried beyond the plain literal meaning of the words employed. The obvious literal meaning of the clause in question is that the insurance does not cover injuries which result from hernia. It is not stated, and consequently cannot be assumed to have been meant, that the insurance was not to cover an injury from which hernia resulted. In other words, under the language of the policy, where hernia is the cause, the insurance is not applicable, but where something else is the cause, and hernia the result, the limitation does not apply. See Travelers' Insurance Co. v. Murray, 16 Colo. 296, 26 Pac. 774, 25 Am. St. Rep. 267,Atlanta Acc. Ass'n v. Alexander, 104 Ga. 709, 30 S. E. 939, 42 L. R. A. 188,Berry v. United Commercial Travelers, 172 Iowa, 429, 154 N. W. 598, L. R. A. 1916B, 617. See, also, Travelers' Ins. Co. v. Murray, 16 Colo. 296, 26 Pac. 774, 25 Am. St. Rep. 267.

[2] It is next contended...