85 N.W. 558 (Neb. 1901), 9,313, Coad v. Travelers' Insurance Company of Hartford, Connecticut
|Citation:||85 N.W. 558, 61 Neb. 563|
|Opinion Judge:||HOLCOMB, J.|
|Party Name:||JOHN F. COAD v. TRAVELERS' INSURANCE COMPANY OF HARTFORD, CONNECTICUT|
|Attorney:||Constantine J. Smyth and J. J. O'Connor, for plaintiff in error. Charles Offutt and W. W. Morsman, contra.|
|Case Date:||March 20, 1901|
|Court:||Supreme Court of Nebraska|
ERROR from the district court for Douglas county. Tried below before FAWCETT, J. Affirmed.
[61 Neb. 564]
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 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 proceeding was 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 [61 Neb. 565] 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 5, "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 5, when the second piece of glass was removed, and once afterwards. In describing the injury further he...
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