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Payment of Premium-Presumption.-Defendant, in October, 1885, issued to plaintiff's son an accident policy, the premiums aggregating $30, to be paid in four monthly installments of $7.50 each. Assured was injured in November, 1885, and defendant's agent then gave him $7.50 on account, and on December 5, 1885, paid him in full for his claim, the insured giving defendant a receipt for the same. The evidence showed that he had only paid the first premium, and that it was through some inadvertence that the second payment had been made, as the policy provided that he was not entitled to this payment unless he had paid his premiums of that amount. The assured was killed October 11, 1886. Held, in an action by plaintiff to recover the balance of insurance money, that the fact that defendant had paid the insured the amount which, under the policy, he was not entitled to unless he had paid his premiums of that amount, was not conclusive proof that such premiums had been paid.
Melin v. Accident Ins. Co. of N. A. (Wis. S. C.), 36 Northwestern Reporter (Feb. 25, 1888), p. 258.
Policy-Death by Inhaling Gas.-An accident policy provided that no recovery could be had upon the policy, unless it was established by clear and positive proof that the death of the insured was “caused by external, violent and accidental means ;” or where death was caused by taking a poison or by contact with poisonous substances.” The insured's death was caused by inhaling coal gas. The court refused to instruct the jury that inhaling of coal gas was taking of poison, if they believed coal gas to be a poisonous substance, which, when inhaled, destroyed life. Held, no error.
6 External and Visible Signs”—Jury. What constitutes "external and visible signs” of an injury is a question for the jury.
Policy-Rule of Construction.-Words of exception from liability, where there is a question of their intent, should be construed most strongly against the insurance company.
United States Mut. Accident Association v. Newman (Va. S. C. A.), 3 Southeastern Reporter (Dec. 13, 1887), p. 805.
Policy-Waiver-Authority of Agent.--A stipulation in the policy that the assured shall claim no waiver by reason of any act of the agent, unless the agent is so authorized by the president or secretary of the company in writing, is confined to those provisions of the policy which make it a valid and binding contract of insurance, and does not extend to those stipulations which are to be performed after the loss has occurred.
Notice and Proof of Death-Waiver-Agent.-It appeared that the company relied on the judgment of its general agent, and paid or refused to pay its losses as he advised; that he refused to pay the loss on the ground that the deceased was drunk at the time of the accident; that alter investigating the accident he told the plaintiff that he had no case, and took away from the attending physician the blank notice and proof of death which he had given him to fill up. Held, that there was a waiver of notice and proof of death.
Somnambulism-Instruction by Court.—The deceased came to his death by falling from a window. An instruction to the jury that if the deceased got up in his sleep, and while asleep fell from the window, they should find for the defendant, was properly refused, as it would tend to mislead the jury, and cause them to think that if the deceased got up in his sleep, waked up and then fell asleep again, and fell out of the window, somnambulism was the proximate cause of his death.
Travelers’ Ins. Co. v. Harvey (Va. S. C. A.), 5 Southeastern Reporter (May 1, 1888), p. 553.
Policy—“Wholly Disabled”-Construction of Contract. The policy provided that “if the insured shall sustain bodily injuries, by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he is insured, then " he shall be indemnified, etc. Held, that, to entitle the plaintiff to recover, he was not reqnired to prove that his injury disabled him to such an extent that he had no physical ability to do what was necessary to be done in the prosecution of his business, but that it was sufficient if he satisfied the jury that his injury was of such a char. acter and to such an extent that common care and prudence required him to desist from the labor, and rest as long as it was reasonably necessary to effectuate a speedy cure.
Misstatement in Notice.—The date of the accident in the notice and proof is not so material that a misstatement of it, without any improper motive, will prevent the plaintiff from maintaining his action, if the defendant is in no way misled or prejudiced thereby.
Young v. Travelers' Ins. Co. (Me. S. J. C.), 13 Atlantic Reporter (June 13, 1888), p. 896.
Suicide-Marder-Presumptions of Law-Jury.-While it is not to be presumed, as a matter of law, that the deceased took his own life, or that he was murdered, the jury were at liberty to draw such inferences in respect to the cause of death as, under the settled rules of evidence, the facts and circumstances justified.
Policy_“Intentional Injuries.”—The policy expressly provided that no claim shall be made under it where the death of the insured was caused by “intentional injuries inflicted by the insured, or any other person.” Held, if insured was murdered, then his death was caused boro intentional injuries inflicted by another person. Nevertheless, the 10structions to the jury were so worded as to convey the idea that if the insured was murdered, the plaintiff was entitled to recover; in other words, even if death was caused wholly by intentional injuries inflicted
upon the insured by another person, the means used were accidental” to him, and, therefore, the company was liable. This was error.
Burden of Proof.--Held, the burden of proof was upon the plaintiff to show, from all the evidence, that the death of the insured was caused by external, violent and accidental means.
Travelers' Ins. Co. v. McKonkey (U. S. S. C.), 20 Chicago Legal News (June 16, 1888), p. 335.
Proximate Cause of Death.—While one insured against accident was driving along a public street, his horse became frightened at an unsightly object and ran away, without upsetting the carriage, or coming in contact with anything; but the insured was apparently greatly endangered at the time, and suffered so severely, either from fright, or strain caused by his physical exertion in restraining the horse, that he died within an hour afterward. Held, that the death ensued from bodily injuries effected through external, violent and accidental means.
Policy-External Sign of Injury. The clause which provides that the insurance shall not extend to any bodily injury of which there shall be no external and visible sigos upon the body of the insured does not apply to fatal injuries, but only to those not resulting in death.
McGlinchy et al. v. Fidelity and Casualty Co. (Me, S. J. C.), 14 Atlantic Reporter (June 20, 1888), p. 13.
Policy - Intentional Injuries-Killed by Robbers. - A policy against death by "external, violent and accidental means,"contained a proviso that no claim should be made thereunder when death may have been caused by intentional injuries inflicted by the assured or any other person. Held, that the assured, having been waglaid and killed for purposes of robbery, there can be no recovery.
Hutchcraft's Ex'r v. Travelers' Ins. Co. (Ky. C. A.), 8 Southwestern Reporter (July 9, 1888), p. 570.
Proximate Cause-Jury.—Where a party insured under an accident policy was injured by falling into an excavation, and a few days later was taken sick with pneumonia and died, the question whether the accident, by weakening the system, was chargeable with the death, is one of fact for the jury.
Policy-Giving Credit for Premium-Authority of Agent. The policy provided that it should not be in force until actual payment of premium, and that no agent had authority to change its terms. Held, that while a mere solicitor could not consent to give credit for the premium to a certain date, such consent might be given by a general agent with authority to fill up blank policies and contracts.
Effort to Pay Premium-Due Diligence-Forfeiture.-Upon the day that the credit expired the insured, it was claimed, called to pay the premium, but not finding the general agent in his office directed the solicitor from whom he procured the policy to settle the premium for him, which the latter agreed to do, but in turn failed to find the agent. Heid, that this was not due diligence in an effort to pay; the insured should have paid the money direct to the solicitor who was authorized to receive it, instead of directing the latter to advance the money and look to him for repayment; that the payment was not excused, and the policy became void through non-payment of premium.
Cronkhite v. Accident Ins. Co. of N. A. (U. S. C. C.), 17 Insurance Law Journal (July, 1888), p. 509.
Due Diligence-Evidence.-In an action against an accident insurance company, the policy being conditioned that the assured shculd use due diligence for his own protection, and the finding being that such diligence was used-where the death had occurred by the assured stepping into an opening in the sidewalk, where a building was being erected, in the night-time—the court refused to reverse the case because on the trial the plaintiff was permitted to ask the witness as to his statement before the coroner's jury of the effect produced by the electric light on the stone wall and mason's platform built out on the side beyond the walk, the platform consisting of horses and planks laid across them, so that to a person approaching it the appearance would be exactly like that of a stone sidewalk, in order to ascertain from the witness the distance he was from the excavation when the sidewalk appeared continuous, and for the purpose of refreshing his recollection as to his observations in the premises, where such statement before the coroner's jury was substantially what the witness stated in his testimony before the trial jury.
Same- Appearance of Sidewalk-Evidence.—There was no error in permitting the plaintiff to introduce witnesses to show the appearance of the sidewalk at night, under like circumstances and surroundings, on thenight succeeding the accident, such witnesses giving testimony similar to those who observed the appearance on the night of the accident. The testimony was admissible as bearing upon the issue whether the deceased was in the exercise of due diligence for his personal safety and protection.
Stone v. Standard Life and Accident Ins. Co. (Mich. S. C.), 15 Western Reporter (August 4, 1888), p. 209.
Policy-Voluntary Exposure.-During a dark and rainy night, for a person with two packages in his hands or arms, to attempt, by choice, to pass over a trestle which he knows to be dangerous, other ways of travel be ing open to him, is, on his part,“ voluntary exposure to unnecessary danger, hazard, or perilous adventure," notwithstanding this was his us ual way of travel, his usual route to his home, and he had been going that way for ten years, and many others went the same way.
Instruction-Error-New Trial.-To recite a state of facts not in dispate, and add, “I charge this to be the law of this case, and under it you must find your verdict,” is not a fair or safe mode of submitting the real controversy to a jury; and new trial must be granted, though the verdict is apparently correct.