Travelers Ins. Co. v. Leibus

Citations

• 18 Ohio C.C. Dec. 700
• 8 Ohio C.C. (n.s.) 201

Syllabus

<p>INSURANCE — PLEADING.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Pleading in Action to Recover Accident Insurance for Death Caused by Accident. I</p> <p>In an action for recovery for death, under a policy of accident insurance-containing the provision that the company insures against death resulting from injuries alone, the judgment against the company will not be reversed for failure to allege in the petition that death was caused solely by the accident, where the answer affirmatively alleged another cause, thereby presenting that issue.</p> <p>[For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 1115-1130. — Ed.]</p> <p>2. Inconsistent Instructions not Warranting Reversal Therefor.</p> <p>Where in such a case the court charged the jury generally that the plaintiff must show that death resulted from the accident alone, and also charged that the burden was on the defendant to show the specific cause of death to have been other than the accident, the apparent inconsistency is not of such a character as to require a reversal oí the judgment.</p> <p>[For other cases in point, see 2 Cyc. Dig., “Charge -to Jury,” §§ 282-286; 5 Cyc. Dig., “Insurance,” §§ 1304-1325. — Ed.]</p> <p>3. Use of “Proximate” Cause as “Sole” Cause with Other Restrictive Words-not Prejudicial.</p> <p>Nor did the use of the word “proximate” cause of death in the sense of “sole” cause, when taken in connection with other qualifying and restrictive words in the same connection, render the instruction confusing or erroneous to an extent requiring a reversal of the judgment.</p> <p>[For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1718-1745. — Ed.]</p> <p>4. Answers as to Weekly Wages Refer to Weekly Indemnity not to Recovery for Death.</p> <p>A clause avoiding a policy of accident insurance for a false or incorrect statement of the weekly earnings of the assured, is applicable only to the weekly indemnity to which the assured would be entitled in case of an injury which incapacita