Rathbun v. Globe Indemnity Company
| Decision Date | 14 October 1921 |
| Docket Number | 21692 |
| Parties | MOLLIE RATHBUN, APPELLEE, v. GLOBE INDEMNITY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Affirmed as modified.
AFFIRMED AS MODIFIED.
Montgomery Hall & Young, for appellant.
Courtright Sidner, Lee & Jones, contra.
This is a suit by the beneficiary upon an accident insurance policy indemnifying the insured against loss from disability resulting from an accident, including loss of life, hospital and surgical expenses. The insured sustained an accident, and, it is alleged by the plaintiff, died as a direct result thereof.
The following brief history of the accident and events following may be considered established by the evidence: At about noon on a day between the 1st and the 5th of March, 1919 (no witness being able to give the exact date), Doctor Rathbun, the deceased, then a practicing physician and surgeon in the city of Fremont, Nebraska, being alone in his automobile, drove up in front of the Fremont Hospital. Upon alighting from the footboard of his car, either from a misstep or by slipping upon the ice on the pavement, he was caused to fall, striking his right hip either upon the pavement in the street or the curb close by. For a moment he lay where he had fallen, then arose and, slightly limping, entered the hospital. For the next two or three days he suffered severe pain in his right hip; the pain then subsided, and for a period of two weeks it was such that he gave it little or no attention. At the end of two weeks the pain and lameness returned, causing much inconvenience when moving from a sitting to a standing posture. This was followed by pains in the rectum on the right side of the pelvis. From that time on he continued to suffer increasing pain and lameness, submitting himself to a rectal examination, both by Fremont and Omaha surgeons, but without a discovery of the trouble, and, growing worse, he retired to his bed for two weeks, at which time another examination was made and revealed a tender swelling or mass in the region of the hip, which gave the patient much pain. In company with another physician he went to Mayo Brothers and submitted himself to examination and treatment, but returned unimproved, and soon thereafter became decidedly worse. Upon another examination by local surgeons the tender mass before mentioned had increased four or five times in size and was extremely tender. The patient was then taken to Doctors Oxnard and Percy, of Chicago, and was again operated upon, this time by an entrance into the abdominal cavity and down deep into the hip, where was readily located this tender mass, pronounced malignant in nature; removing this and properly preparing the parts, radium was applied by a radium specialist. At the end of two weeks the patient returned to Omaha, where he underwent further X-ray treatment, and after spending a week at his home in Fremont he returned to Omaha and the Clarkson Hospital, where he lingered until his death, September 5, 1919. A post-mortem examination made by Doctor Johnson, of the University of Nebraska, and witnessed by some of the leading surgeons of Omaha, revealed malignant growths along the sinus, a complete disintegration and destruction of the bony floor or bottom of the articular cavity of the head and neck of the hip bone, and other like conditions of malignant disease, which all the physicians and surgeons present pronounced sarcoma; the same being the direct result of the injury to his hip received by his fall in March, 1919.
These facts, among others, are in substance set forth in plaintiff's petition, wherein it is further alleged that the deceased was totally and continuously unable to transact all business duties of his profession from the date of the accident until his death, although for a time he undertook to do, and occasionally did, some surgical work until the month of June, 1919; that plaintiff made proper proofs of death of the insured and the cause thereof, and demanded payment of all disability claimed by the plaintiff, amounting to $ 8,242.90, composed of the following items alleged to be due and payable under the various provisions of the policy: Hospital expense, $ 125; disability from March 1 to September 5 at $ 25 a week, $ 617.90; and for loss of life, $ 7,500; totaling $ 8,242.90, together with a reasonable attorney's fee.
The defendant, in its answer, admits the issuance of the policy to deceased, notice of the death of the insured occurring on September 5, 1919, from sarcoma, but denies all other allegations in plaintiff's petition and any and all liability under the policy.
By agreement of parties the case was tried to the court without a jury. The only testimony at the trial was that adduced on behalf of the plaintiff. The defendant cross-examined plaintiff's witnesses, but otherwise offered no evidence. Upon submission of the case the court found for the plaintiff for the full amount prayed for, with interest and costs, together with an attorney's fee, with interest thereon, and rendered judgment accordingly. The defendant appeals.
Several errors are relied upon by the defendant for either the reversal or modification of the judgment of the court below, and, first, because it is established by the evidence that the insured died of sarcoma, a disease, which was the direct result of the bodily injury sustained by the fall of the deceased in March, 1919, and that under special provision A of the policy no recovery for death or disability can be had in such case. Special provision A, in so far as it applies to the instant case, is as follows:
"This policy does not cover * * * loss resulting from bodily injury caused or contributed to, directly or indirectly, by disease, or vice versa."
The "vice versa" provision, as interpreted by the defendant company, and we presume correctly, is as follows:
"This policy does not cover * * * loss resulting from disease caused or contributed to, directly or indirectly, by bodily injury."
It is urgently insisted by the defendant that the evidence establishes all that is claimed for it, as above stated, that the language of the above quoted provisions of the policy is perfectly plain and unambiguous, and must be held to mean exactly what they say, and that, if so construed, plaintiff cannot recover for the disability or death of the insured. We must agree with the defendant that the evidence conclusively shows that the insured died of sarcoma, a disease, and that the disease from which he died was the direct result of the bodily injury sustained from the accident occurring to him in March; but we are not able to agree that the provisions of the policy above quoted forbid a recovery for the disability and death of the insured in this instance. We will, however, cordially agree with counsel for defendant in their argument that, in approaching the construction of an insurance policy, the court should have in mind the same general principles which obtain in the construction of any other contract, in so far as that the language employed should be given its plain, natural and ordinary meaning, and not be twisted into an unnatural or exceptional meaning merely to avoid a forfeiture, and that, when such construction is demanded by the plain and unequivocal terms of the instrument, the courts, of course, should have the moral courage to so construe it, regardless of the consequences. But this rule, of course, presupposes the non-existence of two very important factors in the equation: First, that such construction will not end in an unreasonable or absurd result; and, second, that it will not defeat the manifest intention of the parties and the very object and purpose they had in entering into the contract at all. If the construction indicated will inevitably lead to either one or both of the results above stated, then such construction will be avoided, and, if the provision to be construed will admit of no other construction than the one leading to and ending in such result, the provision itself will be rejected as inoperative, and, ignoring the special provision, the court will look to the whole instrument, and, if possible, in justice to all parties concerned, gather therefrom the real and evident intention and purpose of the parties in respect to the particular question involved, and thus enforce or decline to enforce the contract accordingly. This much would seem to result from the very necessities of the situation. See on this subject 13 C. J. 521, secs. 482-486, and cases cited, L'Engle v. Scottish Union & Nat. Fire Ins. Co., 48 Fla. 82, 37 So. 462, Merrill v. Bell, 14 Miss. 730, and Stockton v. Turner, 7 J.J. Marsh. 192.
Let us consider the effect of this "vice versa" provision in the light of the evidence in the case before us. One of the medical witnesses testifying for plaintiff defined the term "disease" as "any abnormality of the body resulting in a disturbance of the function or functions of the particular part affected; any general disturbance of the general functions of the body; a cut finger would be a disease." While it seems to the writer that the definition thus given is somewhat extreme and almost too comprehensive in its scope, yet the defendant has not seen fit to controvert it, nor are we prepared now to say that it is not sustained, in a substantial measure, by the standard medical authorities and leading lexicographers, as well as by decisions of some of the courts. See Mutual Life Ins. Co. v. Simpson, 88 Tex. 333, 31 S.W. 501.
Assuming then, that the definition as above...
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Rathbun v. Globe Indem. Co.
...107 Neb. 18184 N.W. 903RATHBUNv.GLOBE INDEMNITY CO.No. 21692.Supreme Court of Nebraska.Oct. 14, Syllabus by the Court. The several provisions contained in an accident insurance policy will be given a practical and rational construction, one consistent with reason and common fairness, and wi......