Jacobson v. Mutual Ben. Health & Acc. Ass'n
| Decision Date | 08 February 1941 |
| Docket Number | 6684 |
| Citation | 296 N.W. 545,70 N.D. 566 |
| Court | North Dakota Supreme Court |
Rehearing Denied March 3, 1941, Reported at 70 N.D. 566 at 590. [Copyrighted Material Omitted]
Syllabus by the Court.
1. The decision of an appellate court is the law of a case in all subsequent proceedings in both the trial and appellate courts.
2. In this case the defendant issued an accident insurance policy whereby it insured one Jacobson against loss " resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means * * * which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the insured from the date of the accident and result" in the loss of life of the insured within thirteen weeks. The policy provided that in case of such loss of life the insurer would pay to Clara Jacobson (the plaintiff here), the wife of the insured, the sum of $2,000. Held, that the evidence justified the jury in finding that the insured, on July 23, 1938, sustained bodily injuries through purely accidental means which independently and exclusively of disease and all other causes immediately, continuously and wholly disabled the insured from the date of the accident and resulted in his death on August 16th, 1938.
3. The term " wholly disabled" in such accident policy does not mean a state of complete physical and mental incapacity or utter helplessness; but means inability to do all the substantial and material acts necessary to carry on the business or occupation of the insured, or any business or occupation, in a customary and usual manner, and which acts the insured would be able to perform in such manner but for such disability.
4. The term " continuously" in such accident policy does not denote ceaseless and absolute continuity, but means regularly, protracted, enduring and without any substantial interruption of sequence, as contradistinguished from irregularly, spasmodically, intermittently or occasionally.
5. Where the liability under an accident insurance policy is limited to a continuous period of disability, the continuity of the disability is not broken by the fact that the insured endeavored to perform work if, in fact, he were unable to perform the substantial and material parts of his duties, and common care and prudence required him to desist from such acts in order to effect a cure.
6. The credibility of witnesses, including that of medical experts, and the weight to be given to their testimony, are questions for the jury.
7. Declarations and manifestations of a sick or injured person as to the nature, symptoms and effects of the disease or injury from which he is suffering at the time are competent evidence in an action wherein the nature and cause of the disease or injury are in question.
8. The general rule that a party may not impeach his own witness does not imply that a party calling a witness is bound to accept the version of such witness of material facts as being correct. A party may prove material facts by other competent evidence, even though the effect of such evidence is to contradict his own witness. The object of such contradiction is not to impeach the witness, but to prove facts relevant to the controversy.
9. Under the laws of North Dakota, " every person who is entitled to recover damages, certain or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law or the act of the creditor from paying the debt." Section 7142, C.L.1913.
10. Under the provisions of Section 7142, C.L.1913, the beneficiary in a policy of insurance, whereby the insurer agrees to pay to such beneficiary a certain sum for the loss of life of the insured, is entitled as a matter of law to interest on the principal sum due for the loss of life from the time such loss became payable under the terms of the policy.
11. Where the complaint sets forth a debt or obligation which bears interest as a matter of law, such interest is recoverable as damages as an incident to the debt or obligation, even though there is no allegation in the complaint that interest is due and payable to the plaintiff.
12. Where the complaint sets forth a debt or obligation which bears interest as a matter of law, the right to recover interest is not waived by failure to include the amount of interest in the prayer for judgment.
13. To constitute a waiver there must be an intention to relinquish a known right, an intentional forbearance to enforce a right.
14. For reasons stated in the opinion, it is held that in this case the plaintiff did not intend to waive, and did not waive, the right to recover interest.
15. Where issue is joined by answer and there is a trial of such issue, the prayer for relief in the complaint does not control, but the court may grant to the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. Sec. 7680, C.L.1913.
16. In a case where the sole issue is plaintiff's right to recover anything of the defendant, and where the amount due, if anything, is undisputed and the debt or obligation is of such nature that interest is recoverable as damages as a matter of law, and where the jury returns a general verdict in favor of the plaintiff and against the defendant for the amount of the principal debt without mentioning interest, it is not error prejudicial to the defendant for the court to add the amount of interest to the verdict and order judgment for the plaintiff for the amount due for both the principal and interest.
Appeal from District Court, Burleigh County; R. G. McFarland, Judge.
Action by Clara Jacobson against Mutual Benefit Health & Accident Association, a corporation, to recover on an accident insurance policy for death of the insured. From a judgment and from an order denying its motion for judgment notwithstanding the verdict or a new trial, and from an order denying its motion to amend and reduce the amount of the judgment, defendant appeals.
Affirmed.
Zuger & Zuger and Hyland & Foster, for appellant.
In calling a witness counsel vouches for his general character as a man of truth, and that the burden is upon him to establish a mistake of fact. Kelley v. Kelley, 189 Iowa 311, 177 N.W. 45; Homesteaders Life Asso. v. Salinger, 212 Iowa 251, 235 N.W. 485.
A party is not permitted to assert or present evidence showing one state of facts to be true and afterwards to assert or prove to the court that his prior evidence is untrue or not to be relied upon. People v. Skeehan, 49 Barb. 217; 70 C.J. 1158, note 78.
To support a judgment awarding a recovery of interest the case made in the pleadings must be established by the verdict. 33 C.J. 1177; Steen v. Neva, 37 N.D. 40, 163 N.W. 272.
Interest, as such, however, is recoverable only under the terms of the contract during the continuation thereof. Interest in the case of the breach of a contract to pay money is merely the measure of the damages allowed. 17 C.J. 813, 815.
Murray & Murray, for respondent.
The right to recover interest on the policy (in this case) under the statute became a vested right on the expiration of sixty days after the death of the deceased. 35 C.J. 257, § 18; 46 C.J. 172, § 188, note 46; Baker v. Northern Assur. Co. 214 Mich. 540, 183 N.W. 61; Smith v. Chin Chew (Cal.) 254 P. 599; Sugarman Iron & Metal Co. v. Morse Bros. Mach. & S. Co. (Nev.) 255 P. 1010.
This is an action by the beneficiary named in an accident insurance policy issued by the defendant to recover for the death of the person whose life was insured by such policy. The case has been twice tried to a jury. On each trial a verdict was returned for the plaintiff. The judgment rendered pursuant to the verdict returned on the first trial was reversed by this court and the case remanded for a new trial. Jacobson v. Mutual Ben. Health & Acci. Asso. 69 N.D. 632, 289 N.W. 591. After remand, the case was again tried to a jury and resulted in a verdict in favor of the plaintiff for $ 2,000. The court made an order directing judgment to be entered in favor of the plaintiff and against the defendant for $ 2,000, together with interest thereon, and for costs and disbursements. Judgment was entered in accordance with such order for judgment. Thereafter, the defendant moved in the alternative for judgment notwithstanding the verdict, or for a new trial. The defendant, also, moved that the judgment theretofore entered be modified by deducting therefrom the amount allowed for interest. Both motions were denied, and the defendant has appealed from the judgment and from both orders.
On the former appeal many questions relating to the construction of the terms of the policy were considered and decided. The decision on the former appeal became, and is, the law of the case and the questions then determined are not subject to review on this appeal. 4 C.J. 1213 et seq.
The policy in suit was issued on January 28th, 1928, to Henry J. Jacobson as insured, and named the plaintiff Clara Jacobson, the wife of the insured, as beneficiary. The policy provided:
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