Wray v. Equitable Life Assur. Soc.

• Decision Date: 11 October 1935
• Docket Number: 29341.
• Parties: WRAY v. EQUITABLE LIFE ASSUR. SOC.
• Court: Nebraska Supreme Court

262 N.W. 833

129 Neb. 703

WRAY v. EQUITABLE LIFE ASSUR. SOC.

No. 29341.

Supreme Court of Nebraska.

October 11, 1935

Syllabus by the Court.

The term " due proof of such disability," used in an insurance policy, does not require any particular form of proof which the insurer might arbitrarily demand, but such a statement of facts, as, if established in court, would require payment of the claim.

Appeal from District Court, Lincoln County; Nisley, Judge.

Action by Claud Wray against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant appeals.

Affirmed.

Burkett, Wilson & VanKirk, of Lincoln, and Milton C. Murphy of North Platte, for appellant.

Hoagland, Carr & Hoagland, of North Platte, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

GOSS Chief Justice.

Plaintiff had a verdict after a jury trial. Defendant appealed from the resulting judgment.

Plaintiff was an employee of the Capper Publications, Topeka, Kansas. On October 20, 1927, this concern contracted with defendant to insure its employee for $1,000 under a policy of group life insurance and a certificate to that effect was issued by defendant to plaintiff. On March 2, 1931, the insurance on plaintiff was increased by contract and certificate to $2,000. The contract of insurance provided that if the employee, under the age of 60, shall, while insured, become totally and permanently disabled by bodily injury or disease and thereby presumably be continuously prevented from engaging in any occupation or performing any work for compensation of financial value, upon due proof of such disability before the expiration of one year from the date of its commencement, defendant would pay him 40 monthly disability installments of $52.50 each.

Plaintiff, when about 26 years old, claims to have been injured on June 24, 1931. He testified, and the jury believed him, that he was injured by receiving a sacro-iliac sprain while pushing a truck loaded with lead plates from the press, where they had been used, to the elevator. January 4, 1932, he made out a " group disability claim" on a blank furnished by defendant and it was handled through the employer's business manager. It is admitted that this claim reached defendant shortly after it was made. It answered questions in detail necessary to proper notice to the company of the injury. It however says that he became " wholly disabled as a result of sacro-iliac sprain, caused while lifting heavy weights consisting of stereotype plates."

A deposition by the assistant chief of the disability claims department, taken on behalf of defendant and in evidence, says that the claim and papers purporting to be proofs were filed in his office January 11, 1932, and were declined on January 15, 1932, on the ground that they were not sufficient to indicate a condition of total and permanent disability. The papers consisted of claimant's statement and of a statement from the attending physician who, in filling out the questionnaire, stated that in his opinion the claimant never would be able to resume any business, but in a later numbered question as to whether the doctor believes " the claimant to be so disabled that he is wholly prevented for life from pursuing any and all gainful occupation," the doctor answers, " Unable to determine now."

The term " due proof of such disability," used in an insurance policy, does not require any particular form of proof which the insurer might arbitrarily demand, but such a statement of facts as, if established in c...