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Weiss v. Union Indemnity Co.

Decided: February 2, 1931.

RAY WEISS, RESPONDENT,
v.
UNION INDEMNITY COMPANY, A CORPORATION, APPELLANT



On appeal from the Supreme Court.

For the respondent, Lichtenstein, Schwartz & Friedenberg (David Friedenberg, of counsel).

For the appellant, McDermott, Enright & Carpenter.

Kays

The opinion of the court was delivered by

KAYS, J. This was an action at law brought by the respondent, Ray Weiss, against the appellant, Union Indemnity Company, on an accident insurance policy in the principal sum of $10,000 issued by the appellant company and naming the respondent, Ray Weiss, wife of the insured, as beneficiary. The policy insured the deceased, the husband of the respondent, against the effects of bodily injuries in certain instances and death resulting therefrom. The respondent's husband died from the inhalation of poisonous gas. Under a stipulation, which was entered into between the parties to this suit, it was agreed "that the only question in respect to the issues involved in the above matter which is to be submitted to the court for its decision is that of the amount recoverable on the insurance policy which is the subject-matter of this suit, assuming that while the said policy was in full force and effect, the assured named therein sustained bodily injuries caused directly, solely and independently of all other causes by the involuntary, unconscious inhalation of gas, suffered through external, violent and accidental means, and within ninety days from the date of the accident alleged in

the complaint filed herein, and that while the said policy was in full force and effect, the said assured died as the sole and exclusive result of such bodily injuries." The stipulation further provides that the defendant agrees to pay to the plaintiff, and the plaintiff agrees to accept from the defendant, in settlement of all issues involved, a sum equivalent to one-half of the amount found by the court to be due, and that the plaintiff will accept at any time prior to the decision of the court, the sum of $2,500 on account of whatever should be determined to be due to the plaintiff. It further provides that the matters and things contained therein "are solely for the purpose of the determination of the issues involved in this cause, and for no other purpose, and that neither party shall pay, or be responsible to the other, for any costs whatsoever in this court or the Court of Errors and Appeals."

The policy of insurance, after providing for the insurance of the decedent, in the principal sum of $10,000 in case of his death, contained a number of sections relating to what are called in the policy, "Accident Indemnities," and contains the following wording: "Section 1. If any loss specified in this section shall result solely and exclusively from such injuries within ninety days from date of the accident, the company shall be liable only for such loss, and will pay for loss of life . . . the principal sum." It then mentions a number of other losses, as for instance, both hands, &c., for which it also agrees to pay "The Principal Sum."

The fourth section is entitled, "Double Indemnities," and provides as follows: "Section 4. All the above amounts shall be doubled if such injuries shall be received --

"1st. While riding as a passenger in any passenger car of any street or other railway; or

"2nd. While a passenger and on board a steam vessel licensed for the regular transportation of passengers."

The fifth section is entitled, "Special Indemnities," and provides as follows: "Section 5. Sunstroke, freezing, hydrophobia, or the involuntary and unconscious inhalation of gas or other poisonous vapor, shall be covered with one-half of each ...


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