Shambaugh v. Great Northern Life Insurance Company
| Decision Date | 08 July 1936 |
| Docket Number | 29712 |
| Citation | 268 N.W. 288,131 Neb. 415 |
| Parties | FRANK H. SHAMBAUGH, APPELLEE, v. GREAT NORTHERN LIFE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lincoln county: ISAAC J. NISLEY JUDGE. Reversed and dismissed.
Judgment reversed, and cause dismissed.
Syllabus by the Court.
1. Where there is no uncertainty as to the meaning of an insurance contract and the same is legal and not against public policy, it will be enforced as made.
2. An insured cannot recover for disability, first occurring eight or ten days after accidental injury, under a policy providing for indemnity against disability, resulting from accidental injury, provided such disability is continuous from the date of accident.
Appeal from District Court, Lincoln County; Nisley, Judge.
Action by Dr. Frank H. Shambaugh against the Great Northern Life Insurance Company. From a judgment for plaintiff, defendant appeals.
Reversed and dismissed.
Shuman & Overcash, for appellant.
Harold E. Coates, contra.
Heard before GOSS, C. J., GOOD, DAY, PAINE and CARTER, JJ., and BLACKLEDGE and LANDIS, District Judges.
Plaintiff sued on a policy of accident insurance, to recover for alleged total and partial disability benefits. Defendant admitted the issuance of the policy and that it was in force, but denied that plaintiff's disability, either total or partial, was within the terms of the policy. The trial resulted in a judgment for plaintiff, and defendant has appealed.
The cause was submitted upon a brief and oral argument by counsel for defendant. Plaintiff failed to file brief or present oral argument.
The policy provides for the payment of disability benefits caused "solely from bodily injuries effected, directly and independently of all other causes, through accidental means." The policy further provides that, "if such bodily injuries, independently and exclusively of all other causes, wholly and continuously disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation, for one day or more and so long as the insured lives and suffers said total disability, but subject to Part I, the company will pay" (the indemnity provided for), and further provides: "Or, if such bodily injuries, independently and exclusively of all other causes, wholly and continuously disable the insured from date of accident from performing one or more important daily duties pertaining to his occupation, or for like continuous disability following total loss of time, the company will pay for the period of such partial disability, but not exceeding three months, and subject to Part I, a monthly indemnity," as provided in the policy. (Italics ours.)
In his petition plaintiff alleges that on the 28th day of November, 1933, he sustained a scratch on the back of his neck; that about the 8th day of December following he became partially disabled, and on the 12th day of December became totally disabled for a period of about two months. The cause was submitted upon the evidence on behalf of plaintiff, together with a stipulation of the parties, so there is no conflict.
The evidence discloses that the scratch on the back of plaintiff's neck was about one-fourth of an inch long; that plaintiff did not know whether it caused any hemorrhage or that it pierced the skin; that about eight days thereafter he noticed some irritation; that on the 10th of December he was partially disabled and on the 12th became wholly disabled; that the wound became infected, and there was general septicemia, or blood poisoning. The evidence also discloses that between November 28 and December 10 plaintiff, who is a physician and surgeon, was treating a number of patients who were suffering from various kinds of infection. The evidence does not disclose when the scratch on plaintiff's neck became infected, nor the source of the infection. A physician, who attended plaintiff during his illness, testifies that it could have come from the scratch, but his general testimony indicates that it must have occurred later.
The policy provides that the insurance "covers loss or disability caused by pyogenic infection, the direct result of external inoculation through bodily injuries covered by the policy, subject to all its terms and provisions." Since the evidence fails to show that the septicemia, or blood poisoning, was the direct result of and caused by the accidental scratch on the back of plaintiff's neck, we think that disability resulting from septicemia is not covered by the policy. The evidence discloses that from the 28th day of November, the date on which, plaintiff alleges, the scratch on his neck occurred, he performed his duties, the same as usual, for a period of 10 or 12 days.
The language of the policy seems clear and unambiguous. Its provisions are not illegal or contrary to public policy. The parties have a right to make such a contract as the one in controversy. It is a rule that, where there is no uncertainty as to the meaning of an insurance contract and the same is legal and not against public policy, it will be enforced as made. Omar Baking Co. v. Employers Liability Assurance Corporation, 130 Neb. 365, 264 N.W. 873.
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