Rustin v. Standard Life & Accident Insurance Company

• Decision Date: 21 June 1899
• Docket Number: 8956
• Citation: 79 N.W. 712,58 Neb. 792
• Parties: CHARLES B. RUSTIN v. STANDARD LIFE & ACCIDENT INSURANCE COMPANY
• Court: Nebraska Supreme Court

79 N.W. 712

58 Neb. 792

CHARLES B. RUSTIN v. STANDARD LIFE & ACCIDENT INSURANCE COMPANY

No. 8956

Supreme Court of Nebraska

June 21, 1899

ERROR from the district court of Douglas county. Tried below before SCOTT, J. Reversed.

REVERSED AND REMANDED.

James H. McIntosh and Charles A. Goss, for plaintiff in error:

Where the terms of a life insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity. (Goodwin v. Provident Savings & Life Ass'n, 66 N.W. 157 [Ia.].)

It was for the jury to say what conclusion should be drawn from the facts,--that is, whether or not the lifting, which caused the injury to the plaintiff, was unnecessary, or whether the lifting was in fact overexertion under the circumstances, and if overexertion, whether the overexertion was voluntary. The court could not draw these conclusions of fact from the testimony, and it was error to have done so. (Grant v Cropsey, 8 Neb. 205; Eaton v. Carruth, 11 Neb 231; Atchison & N. R. Co. v. Bailey, 11 Neb. 332; Huff v. Ames, 16 Neb. 139; City of Lincoln v Gillilan, 18 Neb. 114; Johnson v. Missouri P. R. Co., 18 Neb. 690.)

L. F. Crofoot, contra.

References: Lent v. Burlington & M. R. R. Co., 11 Neb. 201; Burns v. City of Fairmont, 28 Neb. 866; Chicago, B. & Q. R. Co. v. Barnard, 32 Neb. 306; Dehning v. Detroit Bridge & Iron Works, 46 Neb. 557; Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 643; Slayton v. Fremont, E. & M. V. R. Co., 40 Neb. 844; Young v. Mutual Accident Ass'n, 25 Chicago Legal News 143.

OPINION

SULLIVAN, J.

This action was brought by Charles B. Rustin to recover on a policy of accident insurance issued to him by the Standard Life & Accident Insurance Company. The injury upon which the claim for indemnity is grounded was the result of an effort on the part of plaintiff to raise a heavy dumb-bell from the ground. The contract contained a stipulation exempting the company from liability for injuries occasioned by unnecessary lifting and voluntary overexertion. The action was defended on the theory that the accident was within the exemption clause. The trial court, at the conclusion of plaintiff's testimony, instructed the jury to return a verdict in favor of the defendant. The correctness of this instruction is the single question presented by the record for decision. The facts being undisputed, we are only required to determine whether they are, under the most favorable construction, sufficient to sustain a verdict in favor of the insured. Rustin was described in his application for insurance as a capitalist. After the issuance of the policy he became president of the Courtland Beach Association, a company owning and conducting a pleasure resort near the city of Omaha. This company was arranging to give an exhibition representing the destruction of Pompeii, and the plaintiff was on the ground superintending the preparatory work. While thus engaged he sustained the injury in question. His own account of the accident is as follows: "Construction was going on for giving the show called 'Pompeii,' and I was out there superintending the building of the seats, and so on; and at noon I took my lunch, and after dinner I went out in the shade of a tree, and was lying down, smoking. There had been an arrangement made for the commencement of a performance by Miller,--I have forgotten what Miller,--a strong man, who was going to give an exhibition with dumb-bells. These dumb-bells were on a bar or handle, each five or six feet long, and purported to weigh 225 and 450 pounds. While lying there smoking, I noticed some boys fooling with the lighter dumb-bell,--the 225 weight. It was very apparent to me ...