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Metzler v. London Guarantee and Accident Co.

Decided: July 10, 1952.

WALTER METZLER, AN INFANT, BY HIS GUARDIAN AD LITEM MAURICE METZLER, PLAINTIFF-RESPONDENT,
v.
LONDON GUARANTEE AND ACCIDENT COMPANY, LIMITED, DEFENDANT-APPELLANT



Eastwood, Stein and Cleary. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

This is an appeal by defendant from an adverse judgment rendered by the Bergen County District Court, in an action instituted to recover benefits alleged to be payable under a limited accident insurance policy.

The facts are not in dispute and are stipulated by the parties. The plaintiff, a student of eight years of age, was the assured under a "Students Medical Accident Policy" issued by the defendant company, which provided, inter alia , indemnity for medical expense caused by accidental bodily

injuries sustained by the assured while going directly from school to home. The annual premium was $1.

On March 12, 1951, Walter Metzler, the assured, left school on the northerly side of Kossuth Street in the Borough of Haledon, turned in a westerly direction and proceeded for a distance of approximately 150 feet, then turned left and proceeded south across Kossuth Street and continued across the curb and sidewalk and across the abutting property a distance of approximately 25 feet to a residential dwelling under construction. At this point he stopped to play on the rafters and beams which covered the foundation and cellar. In the course of his play he fell through to the basement, nine feet below, and sustained injuries.

The court below found that the boy's injuries were suffered while going directly from school and directed that judgment be entered in plaintiff's favor in the sum of $111, representing the amount of the medical and hospital expenses.

Admittedly, the specific provision of the policy pertinent to the issue reads as follows:

"Against loss, which the Company will pay, consisting of expense hereinafter mentioned, resulting from accidental bodily injury sustained by 'such student' only, (a) while in attendance at school; (b) while going directly from home to school and directly from school to home (excluding bodily injuries which may occur in the residence); * * *."

Defendant contends that in crossing the street onto private property to engage in play upon the premises under construction, plaintiff deviated from going directly home from school and took himself outside the protection of the policy, so that defendant was not liable thereunder.

The defendant argues the word "directly" should be given its common ordinary meaning and that the terms of the policy were clear and unambiguous; that the policy cannot be construed otherwise than covering injuries received while going home from school in a straightforward way, without deviation and that to give the policy a different interpretation is to adopt a strained construction.

The plaintiff argues that insurance contracts receive a fair and reasonable construction to fulfill the intent of the parties and that if there be any doubt or ambiguity about the terms thereof, it is to be resolved liberally in favor of the insured and against the company; that normal deviations and digressions are to be expected of an eight year ...


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