249 F2d 155 Stokes v. Travelers Insurance Company

249 F.2d 155

Edgar W. STOKES, Appellant,

No. 16472.

United States Court of Appeals Fifth Circuit.

Nov. 8, 1957, Rehearing Denied Dec. 24, 1957.

Thomas H. Anderson, Anderson & Nadeau, Miami, Fla., for appellant.

James A. Dixon, Jr., Dixon, DeJarnette, Bradford & Williams, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.


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This case is a companion to Stokes v. Continental Assurance Company, 5 Cir., 242 F.2d 893, and to Continental Casualty Company v. Stokes, 5 Cir., 249 F.2d 152. The three cases originate from Stokes's efforts, after an alleged automobile accident on February 26, 1952, to recover benefits under health and disability policies held by him. In Stokes v. Continental Assurance Co., supra, we affirmed a judgment entered upon a jury verdict for the defendant insurance company. In Continental Casualty Company v. Stokes, supra, which was consolidated for trial with the present proceeding, but which has been considered as a separate appeal, we affirmed a judgment in favor of the plaintiff Stokes entered by the trial judge sitting without a jury. In the present case, Stokes appeals from a judgment, similarly entered by the trial judge alone, in favor of the defendant Travelers Insurance Company. The main question is whether the trial judge's findings are supported by the evidence.


By stipulation of the parties this case is to be decided on the testimonial evidence in the record in the Continental Casualty case. The requirements of the Travelers policy, however, are different from those upon which recovery depended in the Continental Casualty case. There, as in the Continental Assurance case, the question was whether the insured had become disabled by bodily or accidental injury, or by sickness, and had suffered a loss of business time thereby. The Travelers policy, on the other hand, provides for indemnification '* * * against less resulting directly and independently of all other causes from bodily injuries sustained during the term of this Policy and effected solely through accidental means, subject to the provisions, conditions and limitations contained in this Policy.'

The trial judge found as a fact:


'* * * 4. That the defendant, The Travelers Insurance Company, is liable to the plaintiff, Edgar W. Stokes, only if the plaintiff is permanently and totally disabled from injuries brought about solely by the aforesaid automobile accident within the meaning of the provisions of said policy, and that the said defendant is not liable to the plaintiff for disabilities, if any, arising independent of his injuries in the aforesaid accident, or disabilities, if any, which were aggravated by the aforesaid accident.


'5. That the disabilities of the plaintiff from September 10, 1952 to the present time, and under which he is laboring at the present time, are conditions which existed prior to the aforesaid automobile accident, and if affected at all by the said accident were merely aggravated, and that his present disabilities were not brought about solely by the said accident within the meaning of the provisions of the defendant's policy of insurance, or, in the case of the plaintiff's claimed heart condition, if any, were unconnected with the aforesaid automobile accident or any other accidental occurrence within the coverage afforded by the aforesaid policy of insurance.'


Without, therefore, reaching the question whether the plaintiff was totally and permanently disabled within the meaning of the policy, the trial judge determined that the plaintiff was not entitled to recover under the policy.


We are in agreement with the trial court in its interpretation of the policy of insurance as it must be applied to the facts of this case. We have carefully examined the evidence and find that it amply sustains the finding that the plaintiff's disability was not solely due to the automobile accident. It cannot be said that the finding is clearly erroneous (Rule 52(a), Fed.Rules Civ.Proc. 28 U.S.C.A.)


The judgment is affirmed.