"Ibis is a.suit tor indemnity for loss of time‘under an accident insurance .policy. Plaintiff alleges that on or about July 13, 1921, .while covered bv uoliov of the defendant e’omnanv and while employed as a'night watchman at Newcomb College, he stumbled, and fell and was struok in the testicles by a plank; that though the injury was painful at the time, he. continued with his worm; that thereafter the glands became swollen and a rupture developed, compelling him to cease work during the early part of the month of April, 1922; that he was operated on at Touro Infirmary for said trouble in the month of May, 1922, and was totally disabled for work during the months of April, May and June, 1922. Upon these allegations he seeks indemnity from defendant .in the sum of |40.00 per month for three months, or a total amount of $120.00.
Defendant pleads exception of no cause of action, and further answering, admits plaintiff's insurance under the policy sued upon, but denies liability. No evidence appears 'to have been taken on the trial in the lower court nor has any reason Dean given for Judgment in favor of plaintiff, dismissing defendant's suit.
Upon the 'original hearing on appeal by only one of the Judges of this court, the judgment appealed from was reversed and plaintiff was awarded the amount prayed for.. Defendant has now been granted a re-hearing .and the matter has been re-argued and submitted-to this court sitting en pane.
It is contended by counsel "for defendant that plaintiff's petition does not support a cause of action in .that the petition recites that a period of nine months intervened between the date of the acoident and the resultant disability and that, consequently, plaintiff was not disablea — "from the date of the aocddent — " t fact necessary -to recovers under the terms of the polioy. The clause of the polioy upon which this action for monthly indemnity for total loss'of time'is predicated reads as follows:
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There is no ambiguity whatever in the language of the aóo.ve-quoted provisions of the policy. The words therein contained need no judicial construction to plainly indicate the clear intention of both parties to the contract, that such indemnity should be due the insured when such injury alone shall have wholly and continuously disabled him, etc., "from the date of the accident," and from no other time. Surely it cannot be said under such a clause in the policy, considered with plaintiff's own admissions and averments iii the petition, that he has set up by the pleadings any cause of action under whioh he may hope to recover. This court in the case of Heymann v. Continental Casualty Company, (Ho. 7806 Orleans Appeal) was affirmed by the Supreme Court of Louisiana (147 La., 1077) in our refusal to follow the judgment of the district court, vhieh 'extended or amplified the plain provisions of a health insurance rider attached •to a life and accident policy. The same principle therein recognized was again approved by the Supreme Court in the case of Feltel v. Fidelity & Casualty Company, 147 La., 52, where the court ruled, though the interval between the accident and the resultant disability was but tnirteen days, as follows:
"It will be noted that by the express terms of this policy the *** disability insured against must be 'immediate' after the accident.
"An exception of no cause of action was filed, based on the ground that the petition does not allege that the disability followed the accident immediately ***.
"This exception was overruled.
"It should have been sustained."
In the case of Robinson v. Masonic Protective Assn., 87 Vt. 138. 88 Atl. 531, 47 L.R.A. (N.S.) 924, the Supreme Court of Vermont has construed and given what might be considered as the only reasonable construction to a clause identical with that now under consideration.. It uvas there said:
*280"We think the words 'date of the accident,'■as used in that clause, were intended to mean total disability from the day of the accident, reckoned from the time of the accident,' that is, within 24 hours .thereafter."
We have carefully examined the authorities of Meyer v. Insurance Co., 41 Ann., 1007, and also Planters lumber Co. v. Frankfort Ins. Co,, cited by counsel for appellant, but cannot find that the facts in either of these oases or the principles of law therein announced are in any manner applicable to the instant case. After the re-hearing of this oase by the whole court, we are of the opinion that the exception of no cause of action herein filed Is well pleaded and should be maintained.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the former judgment of this court be recalled and set asiue, and that the judgment appealed from be and the same hereby is affirmed at plaintiff's costs in both courts.
JUDGMENT AFFIRMED.
MAY 14, 1923.