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Doherty v. American Employers'' Insurance Co.

Decided: January 5, 1934.

JOHN J. DOHERTY, PLAINTIFF-RESPONDENT,
v.
AMERICAN EMPLOYERS' INSURANCE COMPANY OF BOSTON, MASSACHUSETTS, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Mark Townsend, Jr.

For the respondent, Ward & McGinnis.

Donges

The opinion of the court was delivered by

DONGES, J. Respondent brought suit to recover on a policy issued to him by the appellant, assuring certain payments in case of death or disability, resulting from bodily injuries effected solely by accidental means. Respondent had previously recovered verdicts in District Court suits for sums due at the times such suits were instituted, all growing out of the same injuries upon which the present suit is based.

The accident to respondent occurred on April 30th, 1929, and is alleged to have been sustained as respondent was cranking his automobile. The engine backfired and he received a blow which caused a prolapse of the rectum, as a result of which he was "both independently and exclusively of all other causes * * * continuously and wholly disabled and prevented

from performing any and every kind of duty pertaining to his occupation * * *" for the period sued for, namely, from April 20th, 1932, to August 31st, 1932.

Respondent recovered a judgment from which this appeal is taken.

There were in the policy three provisions respecting payments for injuries, namely: (1) $100 per week for life "if such injuries independently and exclusively of all other causes shall within thirty days from the date of the accident continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation."

(2) $75 per week for fifty-two weeks "if such injuries independently and exclusively of all other causes shall within thirty days from the date of accident, or within thirty days following continuous total disability, continuously disable and prevent the insured from performing a major portion of the daily duties pertaining to his occupation."

(3) $50 per week for a period not exceeding two hundred consecutive weeks, "if such injuries independently and exclusively of all other causes shall within thirty days from the date of accident, or within thirty days following a period of continuous total or continuous intermediate disability continuously disable and prevent the insured from performing one or more material daily duties pertaining to his occupation."

Respondent asserted that he suffered disability from accident which brought him within the first quoted provision. Appellant asserted that the insured had not suffered disability which prevented him from performing any and every kind of duty pertaining to his occupation and ...


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