Wheeler v. Standard Accident Insurance Company

• Decision Date: 14 February 1920
• Docket Number: 20755
• Citation: 176 N.W. 670,104 Neb. 219
• Parties: WILLIAM F. WHEELER, APPELLEE, v. STANDARD ACCIDENT INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

176 N.W. 670

104 Neb. 219

WILLIAM F. WHEELER, APPELLEE, v. STANDARD ACCIDENT INSURANCE COMPANY, APPELLANT

No. 20755

Supreme Court of Nebraska

February 14, 1920

APPEAL from the district court for Adams county: WILLIAM C. DORSEY JUDGE. Affirmed.

AFFIRMED.

F. P Olmstead, for appellant.

Stiner & Boslaugh, contra.

DEAN J. LETTON and DAY, JJ., not sitting.

OPINION

DEAN, J.

For personal injuries sustained from an accident alleged to come within the terms of an accident insurance policy, plaintiff recovered judgment for $ 1,202.18, and defendant appealed.

Defendant says only these questions are to be determined: "First. In what hazard did Mr. Wheeler receive his injury? Second. How many weeks is he entitled to receive pay for partial disability?"

Defendant admits liability in the sum of $ 488.50, and argues that the verdict is excessive in all over that sum, for the reason that plaintiff was injured while acting as a "drover, not tending cattle in transit," an occupation classed by the company as more hazardous than that described in the policy as plaintiff's occupation, which is therein described as follows: "Money loaner, insurance and general broker--does some traveling." The injury was sustained while plaintiff was assisting in driving a herd of cattle owned by him to a railroad station for shipment to his ranch. In attempting to mount his horse, the animal lunged forward and, striking him, caused plaintiff to sustain a compound fracture of his right leg.

Section 7 of the policy provides: "If the insured is injured in any occupation classed by the company as more hazardous than that described in the warranties hereinafter contained (excepting ordinary duties about his residence), the company's liability shall be for only such proportion of the principal sum or other indemnity as the premium paid will purchase at the rate fixed by the company for such increased hazard."

Under the decisions we do not think that plaintiff's occupation was changed at the time of the accident as argued by defendant. He was assisting in driving his own cattle to a railroad station for shipment to a ranch owned by him. This was not a change of occupation, but was merely incidental to his occupation. The fact that the insured occasionally or incidentally performs acts that pertain to an occupation that is classed by the insurer as more hazardous than the occupation named in the policy does not have the effect of reducing the amount of recovery in the event of injury. Simmons v. Western Travelers' Accident Ass'n, 79 Neb. 20, 112 N.W. 365; Gotfredson v. German Commercial Accident...