Transylvania Cas. Ins. Co. v. Allen's Adm'r

• Decision Date: 31 January 1919
• Parties: TRANSYLVANIA CASUALTY INS. CO. v. ALLEN'S ADM'R.
• Court: Kentucky Court of Appeals

209 S.W. 44

183 Ky. 117

TRANSYLVANIA CASUALTY INS. CO. v. ALLEN'S ADM'R.

Court of Appeals of Kentucky.

January 31, 1919

Appeal from Circuit Court, Ohio County.

Action by Edward T. Allen's administrator against the Transylvania Casualty Insurance Company. Judgment for plaintiff, and defendant prays an appeal. Appeal granted, and judgment reversed and remanded.

John P Haswell, Jr., of Louisville, for appellant.

Woodward & Kirk, of Hartford, for appellee.

CLAY C.

Edward T. Allen's administrator brought this suit against the Transylvania Casualty Insurance Company to recover on an accident policy issued to the decedent. On submission of the law and facts to the court, judgment was rendered in favor of the plaintiff for $330, and the defendant prays an appeal.

By the policy in question, the defendant agreed to indemnify the decedent as follows:

"Accident Indemnity.

(A) At the rate of thirty dollars per month, for a period not exceeding twenty-four consecutive months against total loss of time resulting directly and independently of all other causes from bodily injuries effected through external violent and accidental means, and which wholly and continuously from date of accident disable and prevent the assured from performing every duty pertaining to any business or occupation.

(B) Or if such injuries shall wholly and continuously from date of accident disable and prevent the assured from performing one or more important daily duties pertaining to his occupation, or in event of like disability immediately following total disability, the company will pay the assured for the period of such disability, not exceeding six (6) consecutive months, forty per cent. of the rate specified in paragraph (A); provided, the maximum period for which indemnity shall be paid under paragraphs (A) and (B) hereof shall not exceed twenty-four consecutive months for any one injury."

The only question we deem it necessary to consider is whether the facts found by the trial court are sufficient to support his finding that the enlargement of the hernia, from which the decedent was suffering, resulted independently of all other causes from bodily injuries effected through external, violent, and accidental means.

Plaintiff's evidence tends to show that the decedent was suffering from hernia at the time the policy was issued, and that this fact was known to defendant's agent. There was further proof to the effect that up to a certain time the hernia was the size of an egg, and that a day or two later it was the size of a half-gallon cup. There was an attempt to show that in the meantime the decedent had been thrown from a runaway wagon, but the testimony on this question was...