Hamblin v. Equitable Life Assurance Society

• Decision Date: 12 May 1933
• Docket Number: 28531
• Citation: 248 N.W. 397,124 Neb. 841
• Parties: JOHN HAMBLIN, APPELLEE, v. EQUITABLE LIFE ASSURANCE SOCIETY, APPELLANT
• Court: Nebraska Supreme Court

248 N.W. 397

124 Neb. 841

JOHN HAMBLIN, APPELLEE, v. EQUITABLE LIFE ASSURANCE SOCIETY, APPELLANT

No. 28531

Supreme Court of Nebraska

May 12, 1933

APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. " Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold." Mitchell v. Brotherhood of Locomotive Firemen and Enginemen, 103 Neb. 791, 174 N.W. 422.

2. A contract of insurance should be given a reasonable construction so as to effectuate the purpose for which it was made. In cases of doubt, it is to be liberally construed in favor of the insured.

3. Total disability, preventing the insured from pursuing a gainful occupation, exists when the injured party is unable to perform the substantial duties of a given occupation.

4. One may be totally incapacitated to pursue a gainful occupation, although he may be able to perform some of the inconsequential duties appertaining thereto.

5. Application to have one made a party to the litigation who has no financial interest therein should be denied.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by John Hamblin against the equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant appeals.

Affirmed.

Brown, Fitch & West, for appellant.

Troyer, Pardee & Felton, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOOD, J.

This is an action based on a group policy of life insurance and an individual certificate issued to plaintiff, who recovered judgment. Defendant has appealed.

Defendant issued to Union Pacific Railroad Company the policy in question, insuring the lives of certain of its employees. Plaintiff was one of the insured. In a rider attached to the policy, the defendant agrees "that, if any employee insured under this contract shall furnish the society with due proof that he has, before having attained the age of 70, become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from pursuing any and all gainful occupations, the society will, at the option of the employer, pay, during such disability and in full settlement of all obligation under this contract pertaining to such life insured, the full amount of the insurance on such life in five equal annual instalments, the first instalment to be payable six months after receipt of due proof of such permanent total disability and the remainder annually thereafter." By a provision in the policy, the amount of plaintiff's insurance was limited to one year's salary, which, in the instant case, amounted to $ 1,140. The instalment payments therefor would be $ 228 each. When the action was brought only four instalments were due, and it was for this amount plaintiff sought recovery.

In his petition plaintiff alleged that, while in the employ of the railroad company, he had received an injury, as the result of which he was totally and permanently disabled from pursuing any and all gainful occupations. Defendant in its answer denied plaintiff's total and permanent disability, and alleged that the Union Pacific Railroad Company had not exercised the option provided for in the quoted rider, and that this was a condition precedent to any right of plaintiff to recover. To the latter defense plaintiff in his reply pleaded an estoppel.

From the evidence it appears that prior to bringing action plaintiff made demand upon defendant for payment of the four instalments, and defendant refused, on the sole ground that plaintiff was not totally and permanently disabled from pursuing any and all gainful occupations. It is a familiar rule that, "Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold." Mitchell v. Brotherhood of Locomotive Firemen and Enginemen, 103 Neb. 791, 174 N.W. 422. See Ballou v. Sherwood, 32 Neb. 666, 49 N.W. 790; Frenzer v. Dufrene, 58 Neb. 432, 78 N.W. 719; First State Bank of Overton v. Stephens Bros., 74 Neb. 616, 105 N.W. 43; Powers v. Bohuslav, 84 Neb. 179, 120 N.W. 942; Yates v. New England Mutual Life Ins. Co., 117 Neb. 265, 220 N.W. 285; Ohio & M. R. Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693. Under the facts disclosed by the record, failure of the railroad company to exercise the option provided for in the rider is not available as a defense.

It is earnestly insisted by defendant that the evidence will not support a finding that plaintiff is totally and permanently disabled, within the meaning of the terms of the policy. It appears that by occupation plaintiff was a cook, and that, while so engaged in the employ of the Union Pacific Railroad Company, he received a severe injury which did not, at the time, incapacitate him for his work, but that he continued for nearly a year thereafter, when, by reason of the injury received, the railroad company deemed it unsafe for him to continue his work, and he was discharged. The injury that he received affected the lower portion of his spine and resulted in spastic paralysis of plaintiff's legs. After his discharge by the railroad company, plaintiff attempted to pursue his occupation as a cook with other companies, but was unable to do more than a small part of his work, his wife assisting him and...