Railway Officials v. Johnson

[263] OPINION OF THE COURT BY JUDGE WHITE AFFIRMING. This is an action on a policy of insurance. After a demurrer to the petition, as amended, bad been overruled, appellant declining to plead further, judgment was rendered for appellee as1 by default, and hence this appeal. The petition, as amended, alleges a contract of insurance and death of the insured, which was caused, as is alleged, “solely by reason of and through sunstroke while in discharge of his duty'as section man and in line of his duty as railroad employe, and that such death was external, violent, and accidental, within the meaning of the policy, and was covered by its terms.” The provisions of the policy bearing on the question read: “The insurance under this policy shall extend only to physical bodily injury resulting in disability or death, 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, and which shall independently of all other causes, immediately, wholly, totally and continuously from the date of the accident causing the injury disable the insured, and prevent, him from doing or performing any work, labor, business or service or any part thereof, wüthin the conditions of this contract. ... If any injury causing disability or death entitling the insured to claim benefits under the provisions of this policy be caused or contributed to . . . by sunstroke or freezing while not in the line of Ms duty as a railroad employe, . . . then, in such ease, the limit of the association’s liability -shall be one-fourth of the sum otherwise payable, anything to the contrary herein notwithstanding. . . Injuries intentionally inflicted by the insured, ... or injuries or death caused or contributed to by disease or [264] infection. . . . are not covered by this policy.” It is insisted by counsel for appellant that death caused solely by sunstroke while in the discharge of duty is not covered by the policy; that this is not external, violent, or iaccd-dental injury, but is death by reason of disease; and that, therefore, there can be no recovery.. If we were to go to the adjudicated oases on this subject, or to reason the case out, much might be said the one way or the other. But we are not left to an interpretation of this policy as to* death caused by sunstroke, as to whether it is considered-accidental. The policy itself, after providing that injury or death caused or contributed to by disease or infection is not covered by the policy, expressly provides that disability or death caused by or contributed to by sunstroke or freezing while not in the line of his duty as railroad employe shall reduce the liability to one-fourth. There is, then, an express liability where death is caused by sunstroke. If the sunstroke occurs while insured is not in the line of his duty, the liability is one-fourth. This certainly means if the sunstroke be received while in the discharge of his duty there would be full liability. The lower count, being of this opinion, properly, we think, overruled the demurrer. Judgment affirmed, with damages.