Bean v. Travelers Insurance
Before: Temple
Synopsis
Accident Insurance — Proofs of Injury and Duration of Disability — Pleading—Insufficient Denial.—In an action upon an accident insurance policy, where the plaintiff alleged in his complaint that within three months after the accident he furnished affirmative proof of his injuries, and of the duration of his disability, an answer admitting that the plaintiff furnished the company with what purported to be affirmative proof, but averring that it did not amount to affirmative proof, states but a legal conclusion, and is not a sufficient denial of ‘the allegation.
Id. —Objection to Form of Proofs—Inferential Statement—Waiver. —An objection to the form of the proofs presented, which might have been remedied, such as that the injury or disability was stated inferentially, and not directly, is waived if not specified by the company.
Id. — Occupation of Capitalist — Disability — Instructions as to Other Occupations — Error without Injury. — In an action upon an accident insurance policy, which insured the plaintiff, “ under classification preferred (being a capitalist by occupation),” from any injuries disabling him from transacting any and every kind of business pertaining to his occupation stated, where the evidence showed, without conflict, that he was totally disabled from transacting any business whatever, and the jury found for the plaintiff, the judgment will not be reversed because of erroneous instructions given upon the question as to his disability to transact any business which a capitalist might reasonably be expected to follow, the error being without injury.
Id.—Money Value oe Time in Occupation not Named.—Where the policy insured the plaintiff “in the sum of fifty dollars per week, against loss of time,” provided he recover nothing in excess of the money value of his time, and further provided that if he was injured in any other occupation more hazardous than that in which he was classed, his insurance was to be calculated at a different rate, it is not essential that he prove the money value of his time in the occupation named in the policy, but he may recover for the money value of such time, at a rate not exceeding fifty dollars per week, in the occupation in which he was engaged at the time of the accident, if not more hazardous than the occupation named.
Temple, C. Appeal from judgment and order refusing a new trial.
This is an action upon an accident insurance policy. In his complaint, the plaintiff, after setting out the contract of insurance and his injury, avers that “ within three months of the time of such accident, plaintiff furnished unto the defendant affirmative proof of-his said injuries, and of the duration of his disability.”
The answer “ admits that the plaintiff furnished defendant with what purported to be his affirmative proof at thé time alleged in the complaint, but defendant denies that the same amounted to affirmative proof of the duration of his alleged disability.”
The policy required written notice to be given of any injury, and provided: “ Unless affirmative proof of death, or loss of limb or sight, or of duration of disability, is so furnished within seven months from the time of such accident, all claims based thereon shall be forfeited to the company.”
[583]At the trial, plaintiff showed that his proof was made out on blanks furnished by the defendant, and with the advice of Dr. Boss, local examining surgeon of the defendant, and by him declared sufficient, but did not offer the papers themselves in evidence. Motion for nonsuit was made for alleged insufficiency of the evidence in this respect, and the same objection was urged on motion for a new trial, and is repeated here.
I think there are several reasons why this contention on the part of the appellant cannot be sustained.
1. There is no sufficient denial. To admit that proof was made, and then to assert that it did not amount to affirmative proof, is but to state a legal conclusion, — the mere opinion of the pleader. If the defect were sufficiently material, it could have denied the allegation that the preliminary proof was made, or could have stated, with its denial, just what was done.
But if the objection was merely as to the form of the proof,—that it was negative rather than affirmative, — meaning that the injury or disability was stated inferentially, and not directly, it is obvious that in this particular case such a defect might have been remedied, and not having been specified by the defendant, was waived.
The defendant, by its policy issued to plaintiff, insured him, “ under classification preferred (being a capitalist by occupation), . . . in the sum of fifty dollars per week, against loss of time, not exceeding twenty-six consecutive weeks, resulting from bodily injuries, . . . . which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated.” The policy also provides that if the insured is injured in any other occupation or exposure classed by the company as more hazardous than that stated, his insurance shall be only for such sums as the premium paid bjr him will purchase at the rates fixed for such increased hazard. In the conditions, it was
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