86 Neb. 285 | Neb. | 1910
Lead Opinion
This is an action upon an accident insurance policy. Plaintiff prevailed, and defendant appeals.
Defendant is a mutual accident insurance company transacting business under the provisions of chapter 53, laws 1903 (Ann. St. 1909, sec. 6661 et seq.) The certificate in suit was issued April 17, 1903. Subsequently plaintiff fell and was severely injured. Defendant does not argue that plaintiff’s fall was not accidental, or that the evidence does not support the amount recovered.
Plaintiff’s application is not in the record, but no suggestion is made that it modifies the evidence before us. Defendant’s constitution and by-laAvs are contained in one instrument. Only such parts of the document as are considered material will be reproduced in this opinion. Article VI provides: “No claim against the association Avill be valid unless notice of the injury with respect to Avhich claim is to be made is received at the office of the association within fifteen days from the date of such injury.” Article VIII is entitled “Benefits.” Section 1 thereof is as follows: “Whenever any member of this asso
Section 3 states: “Whenever any member of this association, while in good standing, shall through external, violent and accidental means, receive bodily injuries which shall independently of all other causes result in the loss of both feet, or both hands, * * * the said member shall receive as indemnity the proceeds of one assessment of two ($2) dollars on each member in good standing at the date of the accident, not exceeding five thousand ($5,0.00) dollars. * * * If said accident shall inde
Plaintiff pleaded that on October 16, 1903, as a result of an accident, which is detailed with particularity, he was wholly and continuously disabled from the transaction of every part of th i duties pertaining to his usual occupation for 52 consecutive weeks, “and that same disability has continuously so disabled him, as aforesaid, ever since; and plaintiff further avers that said injuries so received through external, violent and accidental means resulted in' permanent total disability.” He further charges that the injury rendered him unconscious of his surroundings and he remained in that condition for more than 15 days; that while plaintiff was unconscious his friends notified defendant at its office of his injury.
Defendant admits it issued the certificate in suit; denies that plaintiff was unconscious, and denies that plain tiff or his friends at any time prior to the commencement of the action notified defendant of plaintiff’s injury, “and shows to the court that at the time said beneficiary certificate was issued, and at all times thereafter, it was provided by the constitution and by-laws of defendant that no claims for benefits under such certificate should be valid unless written notice of the accident should be given within 15 days from the happening thereof, and within 30 days from the date of such accident make and give to defendant affirmative proofs in writing showing the duration of the disability, and the nature, cause and effect of the injury sustained, and including the affidavit of the claimant and his attending physician”, etc. It is charged that no such notice was given or proofs of loss furnished, and by the terms of the policy an action could not be maintained thereon until 90 days after proof of loss was furnished,- nor at any time unless begun within one year after plaintiff’s right of action accrued, and that no right to maintain the suit existed at the time the action was commenced or at any other time.
In his amended reply plaintiff admits that defendant’s
Defendant insists the pleadings demonstrate that this suit cannot be maintained because conditions precedent to plaintiff’s right to recover have not been complied with. Plaintiff asserts that defendant having denied all liability has waived the right to insist upon notice of the accident or proof of loss, and cites Omaha Five Ins. Co. v. Dierks & White, 43 Neb. 473, and Western Travelers Accident Ass’n v. Tomson, 72 Neb. 674. In the Dierhs case an insurance company answered, denying that its policy was in force at the time plaintiff claims he had suffered loss. The company also urged a defense based upon an agreement in the policy. Manifestly it was not just to permit the company to insist that the policy was void for one purpose and valid for another. It appeared that Dierks & White, the assured, notified the insurance company’s local agents that the fire occurred, and they
Section 100 of the code gives a defendant the right to plead in his answer as many grounds of defense or counterclaim as he may have, but inconsistent defenses will not be tolerated. Defenses are inconsistent whenever proof of one defense necessarily disproves another. Blodgett v. McMurtry, 39 Neb. 210. An answer in an action upon a policy of insurance is no exception to the general rule. Home Fire Ins. Co. v. Decker, 55 Neb. 346. But, if a person before suit refuses to satisfy a demand for particular reasons stated by him to the plaintiff, he will not be permitted after litigation has commenced to change his ground and defend upon entirely different considerations. Ballou v. Sherwood, 32 Neb. 666; Frenzer v. Dufrene, 58 Neb. 432; State v. Board of County Commissioners, 60 Neb. 566; First State Bank v. Stephen Bros., 74 Neb. 616; Powers v. Bohuslav, 84 Neb. 179.
In the case at bar defendant’s secretary, on March 30, answered a communication from plaintiff’s counsel, and stated: “The office did not report to me that any notice of any accident was ever received by the association, neither have any proofs of claim been filed. We know nothing of the merits of Mr. Hilmer’s claim. Of course will rely upon his failure to give notice and make proper
Upon a consideration Of the facts above stated, we think the evidence shows notice to defendant within the terms of the policy. Woodmen Accident Ass’n v. Pratt, 62 Neb. 673; Western Travelers Accident Ass’n v. Tomson, 72 Neb. 674. If the contract required plaintiff to furnish defendant an affidavit sworn to by himself giving the details of the accident as a condition precedent to a valid claim against it, such proof of loss is material, and if not given, and such default was not waived, but properly pleaded, it might be a defense to the action. A careful consideration of defendant’s constitution and by-laws fails to sat
(1) Section 1 of article VIII refers to weekly sick benefits for not to exceed one year, provided the injured member furnishes the executive board with written proofs of the accident within 30 days after his disability ceases.
(2) Section 2 of said article relates to accidents resulting in death, and the beneficiary is required to furnish the company Avritten proofs within 30 days of such death.
(3) Section 3 of said article contemplates an accident causing the destruction of an eye, foot, hand or limb of the assured, or disabling him so that he cannot perform any duty or follow any occupation for a period of two years or over. The condition is: “No claim mentioned in this section will be valid unless notice in writing of the accident is received in the office of the association Avithin fifteen days from the date of same and affirmative proofs in writing of said claim, as required by the executive board, are received within thirty (30) days after loss occurs.” This section plainly means that proof need not be furnished unless required by the executive board, and it is conceded no such demand was made. We do not think that section 5 of said article refers to the instant case. The attempt to limit the right to maintain an action to 90 days after the right accrues is in violation of the statute, and void. Ann. St. 1909, sec. 6677. The remaining provisions in section 5 are general, and must yield to the special statement in section 3 that proof shall be furnished “as required by the executive board.” Mutual Life Ins. Co. v. Hill, 193 U. S. 551. The quoted Avords must have some significance. They were deliberately inserted by defendant in its constitution for some purpose, and, if not construed as we interpret them, are senseless and impotent. Forfeitures are not favored, nor will the courts construe a contract for insurance so as to defeat the policy holder except to carry out the obvious intention of the parties. Phenix Ins. Co. v. Holcombe,
2. Charles Meier, plaintiff’s son-in-law, testified that he had known plaintiff since 1881—intimately much of that time. He testified at length concerning plaintiff’s actions subsequent to the accident. After stating the facts in answer to numerous questions, he was asked whether, basing his opinion upon the facts testified to by him, he considered plaintiff capable of transacting ordinary business. Defendant objected, but the witness was permitted to answer. The testimony tends strongly to prove that plaintiff was seriously injured, mentally as well as physically, as a result of the fall, and Meier’s testimony was relevant on the issue of plaintiff’s disability. No error was committed in receiving this testimony. Schlencker v. State, 9 Neb. 241. The same conclusion is reached concerning the testimony of Mrs. Meier, plaintiff’s daughter.
A hypothetical question fairly reflecting the facts testified to by witnesses was propounded to Dr. Rosewater, and he was requested to give his. opinion of the cause of plaintiff’s physical condition immediately after the fall. Defendant’s objections were overruled, and the witness stated the symptoms indicated that plaintiff’s unconscious condition was caused by concussion followed by hemorrhage, and later stated that the fall was not caused
Upon consideration of the entire record, we find the judgment of the district court is right, and it is
Affirmed.
Dissenting Opinion
dissenting.
I did not hear the argument in this case, and so am excused from taking part in the decision, but I think it .my duty to protest against the seeming recognition of the decision in Omaha Fire Ins. Co. v. Dierks & White, 43 Neb. 473. In that case the defendant answered that the plaintiff had violated the conditions of his policy by giving a chattel mortgage on the property without the consent or knowledge of the company, and that the plaintiff had not given notice of the loss, and it was decided that these two defenses were inconsistent and could not be pleaded together and relied upon by the company.
When the insured demands payment for his loss, the defendant may of cqurse waive the notice of the loss. So, too, the defendant, when payment is demanded, may waive the formal proofs of the manner of loss, the cause of the fire, and the character and value of the property destroyed. If the defendant, when payment is demanded, flatly denies all liability, refuses to consider the matter, and does not ask for formal proofs, most courts hold that by such conduct the defendant waives both notice and formal proofs. This is not because it is inconsistent to say: “You have forfeited your policy, and you gave no notice of the fire, and did not make the formal proofs.” These statements are not inconsistent; they may all be true. Indeed, the fact that no notice of the fire was given, and also the fact that no proofs of loss were made, add to the probability that
The decision in the Dierhs case is bad. It has been several times virtually overruled by this court, but without being mentioned. It ought not now to be followed or countenanced, but should be overruled.