Rice v. American Protective Health & Acc. Co.

• Decision Date: 26 June 1953
• Docket Number: No. 33319,33319
• Citation: 59 N.W.2d 378,157 Neb. 256
• Court: Nebraska Supreme Court
• Parties: RICE v. AMERICAN PROTECTIVE HEALTH & ACCIDENT CO. et al.

Page 378

59 N.W.2d 378

157 Neb. 256

RICE v. AMERICAN PROTECTIVE HEALTH & ACCIDENT CO. et al.

No. 33319.

Supreme Court of Nebraska.

June 26, 1953.

Syllabus by the Court.

1. Willfully and knowingly false answers to questions in an application for health and accident insurance material to the risk and relied on by the insurer on issuance of the contract may defeat a recovery if timely objection is taken thereto.

2. An instruction which defines confining illness within doors as illness the direct result of which was to render the plaintiff unable to do all of the substantial and material acts necessary to the prosecution of the insured's business or occupation in his customary and usual manner is prejudicially erroneous.

3. Within the meaning of an insurance policy providing indemnity for confinement within doors the term shall receive a reasonable rather than a literal application and the insured is not required to remain constantly within doors, but there must be a substantial confinement within doors.

4. It is the duty of the court to submit to the jury under appropriate instructions all issues presented by the pleadings and supported by evidence.

5. The rule that ordinarily in order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited, applies to the proponent of the witness but not to cross-examination.

6. What the proponent of a witness may and does properly go into in the examination-in-chief the cross-examiner may inquire into on cross-examination as a matter of right and a refusal to allow him to do so is error.

Edwin F. Dosek and Chambers, Holland & Groth, Lincoln, for appellants.

Perry & Perry and W. W. Nuernberger, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action at law by W. Albert Rice, plaintifff and appellee, against American Protective Health & Accident Company, a corporation, and Lincoln Bonding & Insurance Company, a corporation, defendants and appellants, on a health and accident insurance policy issued to the plaintiff by the first named defendant, which for convenience will be referred to hereinafter as the insurance company. The liabilities under the policy were assumed by the second named defendant, which hereinafter if reference to is required will be referred to as the bonding company, hence the action is against the two defendants. The propriety of the joinder is not brought into question. The action was for benefits claimed to be due under the policy.

Issues were joined and the cause was tried to a jury. A verdict was returned in favor of plaintiff for $2,021.18. Judgment was rendered on the verdict and in addition plaintiff was awarded an attorney's fee in the amount of $469.55.

A motion for new trial was duly filed which was overruled. From the judgment and the order overruling the motion for new trial the defendants have appealed.

The brief of appellants contains nine assignments of error. Following a sufficient statement of the issues to present an intelligible consideration of the questions involved the assignments of error, to the extent necessary to consider them herein, will be considered in the order of convenience.

On April 12, 1950, the insurance company issued to plaintiff a contract of insurance which among other things insured the plaintiff against loss of time resulting from bodily injuries and also from sickness or disease.

Regarding sickness or disease indemnities the contract contains the following provisions:

'If such sickness shall confine the Insured continuously within doors for one day or more, the Company will pay--One hundred fifty and no/100--Dollars per month, beginning with the first medical treatment during confinement, but not exceeding sixty consecutive months for any one sickness, provided the Insured is under the regular and personal attendance of a licensed physician, surgeon, osteopath or chiropractor.

'If such sickness shall prevent the Insured from attending to a substantial part of his duties essential to his occupation or following a period of confining disability, the Company will pay, beginning with the first medical treatment during disability, for one day or more, not to exceed three consecutive months at the rate of fifty percent (50%) of the amount payable for confining sickness, provided the Insured is under the regular and personal attendance of a licensed physician, surgeon, osteopath or chiropractor.'

Regarding the definition of certain conditions as disease or sickness the contract contains the following:

'Disability or loss caused by ulcers, vertigo, lame or sprained back, overexertion, overheating, sunstroke, hernia, lockjaw, or any injury complicated with disease, shall be considered as a disease notwithstanding the original cause of such disability or loss, and settlement shall be made accordingly.'

The petition alleges that on January 14, 1951, while the contract was in full force and effect, plaintiff became afflicted with sudden pain which disabled and has completely incapacitated him for the performance of his business of farming and ranching. The evidence conclusively discloses the condition from which the pain and disability flowed was in the lower back or lumbar-sacroiliac region and of course that there was lameness of the back. Thus within the meaning of the contract the claimed disability was on account of sickness or disease.

The petition further sets forth that claim was made for disability benefits but none were ever paid.

Action was then started and in the petition plaintiff claimed that he was entitled to $150 a month for the then period of his disability or $1,950.

In answer to the petition the defendants admitted the issuance of the contract of insurance. They denied generally the allegations of the petition. Then as an affirmative defense they alleged that in the application for the insurance contract the plaintiff made certain answers to questions asked which were material to the risk here which were willfully and knowingly false, thus the defendants were not liable for the payment of the benefits claimed.

The pleaded affirmative defense was by reply denied by the plaintiff.

At the close of plaintiff's evidence the defendants moved for a dismissal on the ground that there was a total variance between the pleadings and proof. The motion was overruled. By the first assignment of error this question is presented to this court.

The point of the motion is that the claim under the pleadings is for indemnity on account of sickness or disease whereas the evidence supports a claim for accidental injury.

The assignment is without merit. By the terms of the contract of insurance heretofore quoted and as already pointed out herein in this opinion the plaintiff was required to treat and regard his condition as a disease or sickness and not as an accidental injury.

As pointed out the answer interposed a defense that the terms of the contract were not enforceable for the reason that the plaintiff gave false answers to questions regarding matters material to the risk. The court rejected this defense and refused to submit it to the jury. On the contrary the court by instruction No. 7 told the jury that the contract was in full force and effect. By their second assignment the appellants assert that this was error. The questions and answers were as follows: Q. 'Are you now in good health?' A. 'Yes'. Q. 'Are you maimed, crippled, or deformed in any way?' A. 'No.'

There can of course be no doubt that these questions and the answers thereto were material to the risk, but to defeat the contract they must have been false. There is no evidence in the record to indicate that these answers were knowingly or willfully false or even false. The second assignment of error is without merit.

The third and fourth assignments of error are of such similarity that they will be treated as one. Their effect is to say that the court in its instructions failed to properly define confining sickness.

From the statement hereinbefore made of the case including the...