Western Travelers' Acc. Ass'n v. Holbrook
| Decision Date | 01 July 1902 |
| Docket Number | 12,078 |
| Citation | 91 N.W. 276,65 Neb. 469 |
| Parties | WESTERN TRAVELERS' ACCIDENT ASSOCIATION v. EDGAR H. HOLBROOK. [*] |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Tried below before BAXTER, J. Affirmed.
AFFIRMED.
O'Neill & Gilbert, for plaintiff in error.
James H. McIntosh, contra.
AMES C. DUFFIE and ALBERT, CC. concur.
The plaintiff in error, hereafter called the defendant, is a mutual accident insurance company, incorporated under the laws of this state and having its principal place of business at Omaha. It had issued to the defendant in error, hereafter called the plaintiff, a policy of insurance, in which it undertook to indemnify him at the rate of $ 25 per week, for not exceeding fifty-two weeks, during which he should be totally disabled by reason of bodily injuries received through external, violent and accidental means. On the 8th day of January, 1898, while the contract was in force, the plaintiff suffered an injury consisting of the breaking of both his legs, and totally disabling him until some time in February, 1899. The contract avoided the liability of the company unless notice of the accident was given to it within fifteen days after the occurrence. This notice was given. It was also provided that such liability should be avoided unless the assured should "within thirty days after the said total disability ceases, furnish the executive board with affirmative proofs in writing, of the duration of the disability, and of the nature, cause and effect of the injury sustained, and such other proofs as may be required by the executive board." Shortly after the happening of the accident the company learned of the nature and extent of the plaintiff's injuries through an examination of them, at its request, by a physician. On the 26th of January 1898,--less than three weeks after the happening of the accident,--the company sent to the plaintiff by mail certain printed forms, enclosed with a letter saying: "We hand you herewith blanks for final proofs which you will please return properly executed as soon as you have recovered." The blanks thus furnished were filled out in writing and signed by the plaintiff's attending physician, as was indicated to be required, and sent to the association in such time as to reach it on the 20th day of January, 1899, some days before the disability ceased, and twelve days after the fifty-two weeks term of indemnity had expired. The nature of the final proofs required was not specified in the contract of insurance, and this physician's statement was a full compliance with all the demands in that respect which had been made upon the plaintiff at the time it was made, and was received by the defendant. Demands for further proofs were, however, made by the company, which were complied with by the plaintiff, but on account of delays unavoidable, by the plaintiff, in the transmission of documents through the mails, did not reach the company until some time in February, more than thirty days from the expiration of the term of indemnity, but within thirty days from the date of the cessation of disability. The plaintiff, however, answered all correspondence promptly, and is in no respect responsible for delay. The foregoing facts are undisputed, and we think dispose of one of the defenses to this action. The plaintiff had no means of knowing what final proofs would be required of him until he was notified with respect thereto by the company. He was thus notified by the letter of January 26, 1898, and until further informed, had a right to rely upon that letter as stating the whole requirement of the company in that regard. The proof required by that letter was sufficient, unless, having had an opportunity so to do, he had neglected to furnish additionally demanded proofs within the specified time. There is not only no evidence of such neglect, but the evidence establishes the contrary beyond the possibility of reasonable controversy. This conclusion makes it unnecessary to decide whether the plaintiff had until thirty days after the cessation of his disability within which to furnish final proofs, according to the letter of his contract, or whether he was bound to furnish them within thirty days after the term of indemnity expired, as the defendant contends.
A further question is as to whether the injury was accidental. The contract contained the following clause: "The association shall not be liable for disappearances, nor shall the association be liable for injuries occasioned wholly or partly, directly or indirectly, by any of the following acts or causes, or occurring while so engaged or affected Disease, bodily or mental infirmity, hernia, orchitis, fits, vertigo, sleepwalking, * * * intentional injuries inflicted by the insured, sane or insane, voluntary over-exertion, wrestling, racing, violation of law, fighting, duelling, war or riot." The manner of the happening of the injury, so far as disclosed by the evidence, was as follows: The plaintiff had been waiting for some time in a corridor on the fourth floor of the New York Life Building in New York city, for the purpose of meeting an appointment. Becoming tired, he sat down to rest upon a balustrade surrounding the open court in the interior of the building. Shortly afterwards he became conscious of being upon the first floor, with both his legs broken, and surrounded by bystanders. He has no recollection of falling through the air, and has no knowledge of when or how he left his seat. No one testified to having seen him fall, or to having seen the...
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