Appeal
from Lawrence Circuit Court.--Hon. H. C. Pepper, Judge.
As
originally instituted, this action was against two
defendants: the Railway Officials & Employes Accident
Association of Indianapolis, Indiana, and the Continental
Casualty Company. The action is based on a policy or
certificate of accident insurance issued by the first named
company. The Continental Casualty Company was included in the
action because it had consolidated with the Accident
Association, which originally issued the policy and had
assumed the liabilities of that association. Before the trial
began plaintiff dismissed as to the Accident Association and
proceeded against the Casualty Company alone. Plaintiff, when
insured, was a brakeman in the employ of the St. Louis & San
Francisco Railroad Company and ran on freight trains from
Springfield to Monett. He had been in that service for about
four years. The policy, or as much of is as is preserved in
the record, will be copied:
"RAILWAY
OFFICIALS AND EMPLOYEES ACCIDENT ASSOCIATION, INDIANAPOLIS
INDIANA.
"In
consideration of his written application, which is hereby
made a part hereof, and the agreement to fully perform and
abide by all the provisions and conditions of this contract
does hereby insure Charles J. Wall, of Logan, Mo., by
occupation a freight brakeman, and agrees to indemnify him
subject to all the terms and conditions herein against
physical, bodily injuries as hereinafter defined. The
insurance under this policy shall extend to physical bodily
injury, resulting in disability, as hereinafter expressed,
and which shall be effected while this contract is in force,
solely by reason of and through external, violent and
accidental means, within the terms and conditions of this
contract.
"Accidental
injuries insured against, subject to the definitions and
conditions below, and payments therefor: . . .
"No.
8. Loss of time for a term not exceeding 104 consecutive
weeks, when immediately, continuously, and wholly disabled by
an injury not herein before specified in provisions one to
seven, inclusive, from doing or performing any work, labor,
business or service or any part thereof, from the date of the
accident causing the injury to the date of recovery. Payment
for injuries under No. 8 shall be at rate of ten dollars per
week.
DEFINITIONS
AND CONDITIONS.
"Proceedings
in case of injury.--Notice of the accident causing the injury
or disability shall be given in writing, addressed to the
association at Indianapolis, Indiana, within fifteen days
from the date of the accident causing the injury or
disability, stating the name, occupation and address of the
insured, with date and full particulars of the accident
causing the injury or disability and causes thereof; and
failure to give such notice within said time shall render
void all claims for such injury or disability. Also verified
affirmative proof, in writing, of the injury or duration of
disability must be furnished by the insured upon the blanks
in use by the Association (which will be furnished upon
application to the Association) within one month from the
termination of disability, or within one month after the
expiration of 104 weeks of such disability, if such
disability shall so long continue; and failure to furnish
such proof within said time shall forfeit all claim for such
injury or disability. All statements contained in the notice
or proof above referred to shall be conclusive against the
claimant as to the matter stated therein, and may be
introduced in evidence in any action on this policy. No legal
proceedings for recovery hereunder shall be brought within 90
days after receipt of such proof at the home office.
"This
policy shall take effect at twelve o'clock noon (Standard
Time) on the date hereof, and expires at the end of 12 months
therefrom. Dated and signed November 17th, 1900."
It will
be observed that the policy bore the date of November 17,
1900 and was to run for twelve months. The accident to
plaintiff, for which he sues, occurred November 7, 1901, and
during the life of the policy. The circumstances of the
accident were these; at about half past six o'clock in
the evening of the date just mentioned, the plaintiff started
from his home in Springfield to go to the caboose of the
train on which he was going out the next morning. He walked
down the railroad track until he came to a viaduct over
Washington avenue. The viaduct was not yet completed and the
track passed over it on ties, the spaces between which are
open. The evening was dark. The plaintiff fell from the
viaduct and injured his left leg. His young son was with him
at the time and fell too. There were also two men in his
company, Mr. Neal and Mr. Robinson. The fall made plaintiff
so sick at the time that he lay on the ground for a while,
but recovered sufficiently to go to the caboose. The injury
to his leg was a bruise and a break in the skin between the
knee and the ankle, which developed into a bad running sore
and laid the plaintiff up until August of the next year. He
was discharged from the railroad hospital as fit for work
August 15, 1902. This discharge was in writing and signed by
the hospital surgeon. The answer of the defendant was a
general denial, but the actual defense was that the plaintiff
did not sustain an injury within the terms of the policy and,
therefore, the defendant was under no obligation to indemnify
him for his lost time. By the terms of the policy the
plaintiff was to be indemnified for loss of time due to
physical, bodily injury resulting in total disability caused
solely by external, violent and accidental means. The
defendant contends that plaintiff's injury did not result
in immediate or total disability as expressed in the
contract; that it was shown by plaintiff's own testimony,
and his statement to the defendant, that he was neither
immediately nor totally disabled. That statement must be
quoted:
"I,
Charles J. Wall, age 37 years, holder of policy No. 193282
for $ 10 per week indemnity in case of accidental injury,
sustained bodily injuries on the 7th day of November, 1901,
and I warrant the answer to the following questions to be
true:
"1.
When did the injury occur? Month, November, day, 7th, hour,
6:30 p. m.
"2.
What day of the month did you quit work on account of this
injury? Mo., November, day, 15th, hour, at about 5:30 p. m.
"3.
How long did the injury continuously and totally disable you
from the prosecution of any and every kind of labor or
business? Answer. Not able to resume work yet.
"4,
Give the day of month you reported for work. Not
reported--not yet well.
"5.
What were you doing at the time injury was received, and how
did the same occur? I was going to caboose to go out on my
run, fell in viaduct over Washington avenue, skinning my left
shin, about 3 1-2 inches long.
"6.
What injury did you receive? Skinned left shin.
"7.
Who were present at the time the injury was received? F. O.
Neal and E. L. Roberson (brakeman).
"8.
Amount insured in other accident associations or companies
and name them. None.
"9.
What was your occupation at the time of this injury?
Brakeman.
"10.
State whether on freight, passenger or mixed train. Freight.
"11.
Name company engaged with at time of injury. St. Louis & San
Francisco Railroad.
"12.
Give name and address of your superintendent. Name, A.
O'Hara; address, Springfield, Mo.
"I
hereby warrant each of the above statements to be true, and
any found to be untrue, shall forfeit all my rights to
indemnity; and I agree for myself and beneficiary, that when
this claim is paid, it shall be in full discharge of all
claim under my certificate or policy on account of this
injury; and I further agree to notify the general office
immediately of any further injury I may sustain, and failure
to do so shall forfeit my claim.
"Dated
this 5th day of May, 1902.
(Claimant's
signature.) "CHARLES J. WALL.
"Notice.--No
claim will be paid without a physician's statement. When
injured, keep yourself under the doctor's care."
In the
above document the plaintiff stated he was hurt on the 7th
day of November and quit work on account of the injury on
November 15th. Plaintiff went on two runs between the 7th of
the month, the date he was hurt, and the 15th, when he
entered the hospital. On these runs he was able to do no
work. Neal, who was learning the duties of brakeman, went
along and did all plaintiff's work and plaintiff paid him
for it. At the end of a week plaintiff was forced to go to
the hospital at Springfield and was laid up for many months.
Sometimes during the period of retirement from service, he
went to a farm he owned in Lawrence county and consulted with
his hands about the affairs of the farm; ditching, shipping
berries and other matters. He was required by the defendant
to obtain a certificate from the attending physician, to be
made out on a blank furnished by the company for that
purpose, containing at the head the announcement that the
policy insured only for total disability.
The
attending physician's statement was as follows:
"Accident
Policies insure against total, not partial disability by
accident, and no injury, not totally disabling, however
painful or inconvenient, is covered under the terms of the
policy.
"It
should be the endeavor of the attending physician to dissuade
policy holders from making claims for trivial injuries, as
all such claims must be rejected, and it is mortifying to a
claimant, who has made a claim through misapprehension or
otherwise, to have it denied.
"1.
When did you first see claim...
