Oswald v. Equitable Life Assurance Society
| Decision Date | 31 December 1934 |
| Docket Number | 28988 |
| Parties | JOHN C. OSWALD, APPELLANT, v. EQUITABLE LIFE ASSURANCE SOCIETY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. Hamblin v. Equitable Life Assurance Society, 124 Neb. 841, 248 N.W. 397.
2. 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.
3. A trial court should not direct the verdict of a jury unless the evidence is so clear upon every point upon which the verdict must depend that reasonable minds could not come to any other conclusion.
Appeal from District Court, Douglas County; Redick, Judge.
Action by John C. Oswald against the Equitable Life Assurance Society of the United States and the Union Pacific Railroad Company. The action was dismissed as to the last-named defendant. From an adverse judgment, plaintiff appeals.
Judgment reversed, and cause remanded, with directions.
G. H. Seig, for appellant.
Brown, Fitch & West, contra.
Heard before ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and LESLIE and RYAN, District Judges.
This action was brought by the appellant to recover accrued, total, permanent disability indemnity in the sum of $ 1,000 under a group insurance policy written upon employees of the Union Pacific Railroad Company by the appellee. The appellant for a number of years prior to January 10, 1931, was employed by the Union Pacific Railroad Company as a switchman. On January 10, 1931, he was retired from the service of the railroad company on account of physical disability consisting of deafness and ulcers of the stomach. He alleges in his petition that he became and was totally disabled and from January 10, 1931, will be permanently, continuously and wholly prevented thereby for life from pursuing any and all gainful occupations, and that he was then under the age of 70 years. On January 1, 1923, the appellee issued to the plaintiff, as one of the employees of the Union Pacific Railroad Company, its individual certificate No. 25206 under its group insurance policy with said railroad company, whereby the appellant became and was insured in the event of total and permanent disability to the extent and in the sum of $ 2,500; that the plaintiff made claim upon the defendant and gave notice to the railroad company and submitted proof of his disability. The defendant acknowledged receipt of proof and evidence in support of appellant's claim, but denied liability upon the ground that the appellant's disability is not total and permanent; that the plaintiff's wages for a period of one year amounted to the sum of $ 2,500; and that the annual installments now due amount to the sum of $ 1,000 with interest from January 10, 1931. Appellant also claims a reasonable attorney's fee to be taxed as costs. The Union Pacific Railroad Company was joined as a defendant, but no cause of action is stated as to it and the case is dismissed as to it.
In its answer the defendant admitted the employment of the plaintiff as alleged, the issuance of the certificate and the fact that the same was issued in pursuance of said policy of group insurance, but denied the other allegations of plaintiff's petition. For further answer the defendant set out the total, permanent disability clause relied upon, and in that connection alleged the railroad company had not exercised the option provided in the certificate and that proof had not been furnished the appellee that appellant had become wholly disabled by reason of bodily injuries or disease and that he will be permanently, continuously and wholly prevented thereby during life from pursuing any and all gainful occupations. The plaintiff filed a reply in which he denied all the allegations of the answer of the appellee except the admissions contained therein, and alleged that the fact that the Union Pacific Railroad Company had not exercised an option to have the insurance benefits paid to the plaintiff by the appellee is immaterial.
At the close of the evidence the court sustained a motion to direct a verdict in behalf of the appellee. Motion for a new trial was duly filed and was overruled. The appellant brings the case here for review.
The evidence showed that the appellant was 43 years of age and a married man; that he had been in the service of the railroad company continuously from January, 1918, to January 10, 1931 except for his service in the army during the years 1918 and 1919. Briefly the evidence disclosed that the plaintiff had suffered a total loss of hearing in the right ear and a 50 per cent. loss in the left ear and that he suffered from chronic ulcers of the stomach. After his dismissal by the railroad company the appellant endeavored to gain a livelihood by engaging in business. He appears to have made two business ventures. The first was with the Safety Signal Manufactury, a concern that manufactured reflectors and other safety signal devices for trucks. The second was with the LaDana Sales Company. Both of these business ventures proved failures and the defendant withdrew very little, if any, greater sum than he had...
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