Coad v. Travelers' Ins. Co. of Hartford, Conn.

Decision Date20 March 1901
Citation61 Neb. 563,85 N.W. 558
PartiesCOAD v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. In a policy of accident insurance, wherein it is provided for indemnity when the injury resulting from an accident shall “wholly disable him from transacting any and every kind of business pertaining to his occupation,” a partial disability only, in conducting the business pertaining to the occupation given, will not justify a recovery, under the provisions of the policy.

2. The phrase, “wholly disabled,” should be given a reasonable and practical construction, so as to carry out the intention of the parties, and give to the assured the protection contracted for.

3. If an injury received by the assured renders him less capable of performing the duties required in the conduct of his business, but notwithstanding the same he is able to devote substantially all of his time to the business, and to do practically all kinds of work and perform all necessary acts for the prosecution thereof, and accomplish, substantially, results of the same character as before the injury, he would not be wholly disabled from transacting “any and every kind of business pertaining to his occupation,” within the meaning of the contract of insurance.

4. Where there are different branches of the business pertaining to the occupation in which a party is insured, the prosecution of one of which might be prevented by an injury, and yet the other engaged in, prosecuted, and carried on, the injury would not then be regarded as preventing the assured from performing “any and every kind of business pertaining to his occupation,” within the meaning of the policy.

5. Evidence examined, and, when most favorably construed towards the plaintiff, held, the jury would not be warranted in inferring a total disability, within the meaning of the contract, entitling the plaintiff to recover, and that a peremptory instruction to return a verdict for the defendant was proper.

Error to district court, Douglas county; Fawcett, Judge.

Action by John F. Coad against the Travelers' Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff brings error. Affirmed.C. J. Smyth and J. J. O'Connor, for plaintiff in error.

W. W. Morsman, for defendant in error.

HOLCOMB, J.

A policy of accident insurance was issued to plaintiff in error, also plaintiff below, by the defendant insurance company, in which it was provided that the insurance was “against loss of time, not exceeding 26 consecutive weeks, resulting from bodily injuries effected during the term of this insurance, through external, violent, and accidental means, which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation.” In the policy the occupation was given as a capitalist, it being a preferred classification of risks. The plaintiff, according to the allegations of the petition, received, during the continuance of the policy, a personal injury by the bursting of a bottle, cutting his left hand, the cut being, it is alleged, “quite deep, severing several of the tendons of the fingers and damaging others, and he thereby became totally disabled from attending to any business, said hand being totally disabled.” After issues were joined and a trial to a jury, the court, on the request of the defendant, peremptorily instructed the jury that, “under the pleadings and the proof in this case, the plaintiff cannot recover, and the jury will therefore return a verdict for the defendant.” An exception to the instruction was duly taken, and upon a motion for a new trial being overruled, and judgment entered on the verdict, error proceedings were begun in this court to secure a reversal of the judgment.

The sole question presented and argued is whether, under the evidence, the question of total disability of the plaintiff from the effects of the injury sustained and pleaded in the petition should have been submitted to the jury as a question of fact for their determination; or, to state the proposition in another way, would the evidence support a verdict for the plaintiff had the jury so found?

The injury occurred September 17, 1893. It is described by the physician called to dress it as “a slight laceration, as I remember it now, over the back of his left hand, * * * an inch and a half back of the knuckle of the first finger. * * * I think it was probably about a quarter of an inch [[[across]. * * * It went through the skin, and, as I remember it, through the outside of this tendon [of the first finger]. I removed a small piece of glass from the wound, and then I dressed the wound.” On February 5th, “as I recollect, there was a slight elevation at the seat of the original injury, and on pressure I felt confident that I detected a piece of glass. I opened it,--made a slight opening,--and extracted a small piece of glass that I had failed to discover on the 18th of September, 1893.” The witness had seen the wound professionally several times between the time when the injury occurred and February 5th, when the second piece of glass was removed, and once afterwards. In describing the injury further, he says: “His hand was quite tender in that location, and there was inability to--that is what causes him pain--to extend or flex these fingers of his left hand. * * * This tendon that supports and controls the first finger was very much lacerated.” The following, aside from the foregoing, may be regarded as a fair epitome of the testimony of the case regarding the plaintiff's ability to conduct, oversee, and attend to his business: He went to his office the day following the injury, which occurred on Sunday, and was not at any time subsequently prevented, by reason of the injury, from going to his office and directing the management of his business affairs. He visited the World's Fair at Chicago for a week the latter part of the same month the injury was received. He was able to attend meetings of the board of directors of banks in which he had an interest in both Omaha and South Omaha. He wrote letters, dictated others, and signed checks. He was at his office to look after his business interests every day, unless called elsewhere on other business matters or when visiting the World's Fair. He was unable to button his collar, tie his shoes, or divide his food at meals. He experienced a great deal of pain in consequence of the accident. He had interests in different parts of the state, in California, and Texas, which he claims he did not and could not personally visit and look after during the time mentioned, and when the injury is claimed to have totally disabled him from attending to his business. While the plaintiff testifies to his disabilities from the accident, he does not testify to facts upon which to base an inference that he was prevented from performing any...

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