Harrington v. S. Sur. Co.

• Decision Date: 23 October 1928
• Docket Number: No. 39281.,39281.
• Citation: 206 Iowa 925,221 N.W. 577
• Parties: HARRINGTON v. SOUTHERN SURETY CO.
• Court: Iowa Supreme Court

206 Iowa 925

221 N.W. 577

HARRINGTON

v.SOUTHERN SURETY CO.

No. 39281.

Supreme Court of Iowa.

Oct. 23, 1928.

Appeal from District Court, Woodbury County; Rob. H. Munger, Judge.

Action to recover disability under accident policy. There was a trial to the jury, resulting in a judgment in plaintiff's favor, and the defendant appeals. Affirmed.Sam G. Pickus and R. A. Oliver, both of Sioux City, for appellant.

Clay H. Jensen and D. F. Loepp, both of Sioux City, for appellee.

KINDIG, J.

On February 24, 1926, the appellant, an Iowa insurance corporation, issued to appellee an automobile accident insurance policy providing for the following indemnity:

“(a) For such an injury as shall immediately, continuously, and wholly disable and prevent the insured from the date of accident from performing each and every kind of duty pertaining to his business or occupation, $25.00 per week for the period of such disability, not exceeding twenty-six consecutive weeks.

(b) For partial disability or delayed total disability, $12.50 per week, not exceeding four consecutive weeks.”

Thereafter, on July 14 of the same year, while the contract was in full force and effect, appellee was riding in an automobile, on the streets of Sioux City, with her father and mother. She was sitting in the back, and they were in the front seat thereof. The father was driving. As they went over a hill, a washout in the street was encountered, causing the front wheels of the vehicle to drop. This threw appellee's head against the top. When the back wheels reached the depression, appellee again was thrown up against the conveyance. Thereby she received a fracture of the fourth vertebra and bruises on the back of her head and neck. That condition caused her headaches, ringing in the ears, and dizziness.

At the time of the injury, appellee was employed by the Sanitary Swimming Pool Company, of Sioux City. Her salary for this occupation was $15 per week. Disability arose because of the accident and resulting injuries, for which appellee made claim against the appellant under the insurance policy. Appellant refused to assume liability therefor and make payment thereof. So, in order to recover her loss, appellee as plaintiff brought this suit against appellant as defendant. Consequently, a trial was had to the jury, resulting in a verdict for appellee.

[1] I. In the first place appellant contends that in no event can appellee recover total disability under paragraph (a) of the policy, before quoted, for the reason that the record shows without contradiction that she was not immediately, continuously, and wholly disabled from July 14, but only from July 28th. Therefore appellant says the trial court should have directed the jury to return a verdict in its favor accordingly. With this conclusion of the record we are constrained to disagree. Appellee testified:

“The next morning I went down with my father to the office between nine and ten o'clock. I usually tried to be there early. When I got there I just sat around. I couldn't do anything. I tried to work and I couldn't. Dad took me home around noon and then I went down for a little while in the afternoon. I couldn't do any work in the afternoon. I didn't do any work the next day. I think I went to the office every day from the 14th day of July to July 27th, but I am not positive. I tried to set up some type for a multigraph but I couldn't do that. My head pained so, I was confused--my head roared so I was dizzy. On July 27th, in the evening after I came home from the office, we had dinner and at about 11 o'clock I collapsed and became unconscious. Dr. Charles F. Thompaon was called and I was placed in bed and confined there several days. * * * I didn't work. I didn't go to the office * * * after my collapse. I didn't perform any work in my usual occupation from the 14th day of July, 1926, up to and including the 5th or 6th day of January, 1927.”

Cross-examination revealed the following:

“I was there (at the office) because I was not able to do anything around the house and I didn't think the ride would hurt me going down town. My father could be there, so I just went. I wasn't there for the purpose of doing anything. * * * I didn't have a doctor because I kept thinking I would get better up until the 27th.”

M. M. Harrington, appellee's father, said:

“She (appellee) performed none of her duties between (July 14th) and January 5th or 6th. I paid her for the period between July 14th and July 27th. * * * I always thought it was customary to pay them (employees) if they were sick for a week or two, so I paid her.”

Because of those facts and circumstances, it cannot be said that there was no evidence to sustain appellee's claim that she was “immediately, continuously, and wholly disabled so as to prevent performance of each and every kind of duty pertaining to her business from July 14th.” Hence the court was justified in refusing to direct the verdict.

[2] II. Nevertheless appellant urges that appellee is not entitled to obtain the remedy sought in the face of the estoppel rising out of the notice and proof of loss made by appellee in this matter. Those documents, so far as material, contain the following statements:

“Date injured, July 14, 1926, at 7:30 P. M., and compelled to cease work * * * July 27, 1926. Q. From and to what date were you continuously disabled in consequence of said injury, according to the definition on back hereof? A. Totally and absolutely disabled from July 27, 1926, to (still unable to work).”

Such “notice and proof of loss” were not accepted by appellant as the basis for a contract of settlement. No adjustment was made or offered, but, on the other hand, liability was disclaimed. Denial, in fact, is made that “proof of loss” was ever furnished according to the terms of the policy. Under these circumstances, those statements of appellee in the notice and proof of loss were not conclusive, but rebuttable. Doubtless appellee's declarations thus presented amounted to prima facie evidence of the facts asserted. Manifestly, however, they are subject to explanation and contradiction until acted upon by appellant. Corkery v. Fire Insurance Co., 99 Iowa, 382, 68 N. W. 792;Michalek v. Modern Brotherhood of America, 179 Iowa, 33, 161 N. W. 125;Melton v. Royal Highlanders, 194 Iowa, 352, 189 N. W. 787;Anderson v. Royal Highlanders, 195 Iowa, 1252, 193 N. W. 640.

[3] III. However, appellant argues that, even though the above and foregoing is the general rule, yet it cannot be applied to the facts in the case at bar, because appellee did not “controvert, reject, modify, or explain” her representations in the “notice and proof of loss.”

A reference to her testimony, previously set forth herein, will convince beyond dispute that she did thus ...