Bondy v. Phoenix Indemnity Co.

DOOLING, J. Plaintiff appeals from a judgment for defendant following the verdict of a jury. The action was upon a policy of insurance issued by defendant to plaintiff’s husband covering generally loss resulting from accidental bodily injuries and making plaintiff the beneficiary in case of death of the insured in a manner covered by the policy.

The insured was involved in an automobile accident in 1949, which caused him no apparent physical injury and for which he made no claim under the policy. However there was testimony that from the date of the accident until his death he was unable to perform any of his occupational duties. The only question presented to the jury was whether the accident caused the death of the insured and the jury on this issue found against the plaintiff. That this finding is supported by the evidence is not disputed.

Appellant’s sole contention is that under the language of the policy death from any cause was within the coverage of the policy if the insured was within 30 days of the accident permanently disabled thereby or in the alternative that the policy was ambiguous in this respect and she was entitled to introduce evidence of her construction of the policy to explain the ambiguity.

The following quotation from the language of the policy presents the material question on appeal:

“This policy provides indemnity for loss of Life, Limb, Sight, Speech, Hearing or Time by Accidental Bodily Injuries, as herein limited and provided.

“Phoenix Indemnity Company ... In Consideration of the premium . . . hereby insures the person named in Statement 1 of the said application against loss resulting independently and exclusively of all other causes from accidental bodily injury, hereinafter referred to as ‘such injury’, as follows:

“Loss of Life

“Clause 1. If ‘such injury’ alone shall, commencing on date of the accident or within 30 days thereof, wholly and continuously disable and prevent the Insured from performing any and every duty pertaining to his occupation to the date of loss of life, or if within twenty-six weeks from date of accident regardless of intervening total disability, ‘such injury’ alone shall result in loss of life, the Company will pay the Principal Sum, and in addition weekly accident indemnity as hereinafter provided to the date of loss of life.” (Emphasis ours.)

[704]