65 Neb. 469 | Neb. | 1902
Lead Opinion
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
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 law7, fighting, duelling, wrar or riot.” The manner of the happening of the injury, so far as disclosed by the evidence, was as follows: The plaintiff had been Avaiting for some time in a corridor on the fourth floor of the NeAV York Life Building in New York city, for the purpose of meeting an appointment. Becoming tired, he sat down to rest iupon 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 how7 lie left his seat. No one testified to having
The petition alleged that the fall was accidental, and it is insisted that the burden of proof was upon the plaintiff to establish that cause, and no other. The correctness of this contention is undisputed, but we think the .plaintiff has met the requirement. All that was demanded of him was to establish a reasonable probability. He was not bound to conclusively negative every other hypothesis or conjecture which might be suggested without evidence in its support.
A jury Avas waived, and the cause tried to the court, who found generally for the plaintiff, and rendered judg
Commissioner’s opinion, Department No. 1.
By the Court: For reasons stated in the foregoing opinion, it is ordered that the finding and judgment of the district court be
Affirmed.
54 Am. Rep., 486.
Rehearing
This action was brought by Edgar Hodgson Holbrook, defendant in error, against the Western Travelers’ Acci
In the prior opinion, it is said: “When it has been sufficiently established by circumstantial evidence that a person has suffered injury by reason of falling from a dangerous height, it will be presumed, in the absence of evidence to the contrary, that the fall was accidental.” The accident for which recovery is sought in this cáse, is alleged to have occurred January 8th, 1898. According to the testimony of defendant in error, at 10 o’clock in the forenoon of that day he had an appointment on the fourth floor of the building No. 346, Broadway, New York. While waiting, he leaned against the balustrade surrounding the stairway, and, as he says, “in some manner lost my balance and fell over the balustrade to the steps below, sustaining fractures of both legs.” The balustrade was about three feet high. Defendant in error leaned against it with one leg resting against it and the other resting on the floor. He had never been afflicted with vertigo, fits or dizziness, or any similar affliction. He was not conscious of any dizziness preceding the fall. He did not recollect his flight through the air, or any sensation presumably produced thereby. Plis first sensation after the remembrance of leaning against the balustrade was when a physician called to attend him applied stimulants to his nostrils. This was at the landing where he alleged he had fallen. There is no further testimony as to the manner in which the injury was sustained. There is likewise no testimony tending to explain the injuries upon any other hypothesis than that given by defendant in error. As we understand contention of plaintiff in error, it is that defendant in error must prove that he suffered the injuries complained of by accidentally falling over the balustrade of the New York Life Building, and that the
Was the fall thus proved accidental? We do not understand counsel to deny that it was, but they do certainly deny that the accidental character of the fall is proved by competent evidence. The logic of counsel seems to be: Conceding that the circumstances shoAv a fall, they sIioav that, and nothing more. To say that it was accidental, is to base an inference in part upon the inference of a fall. We think the fallacy is apparent. It Avas accidental or it Avas not. It is impossible to exclude the one predication Avithout adopting the other. Adopting counsel’s logic, we might say that Ave can not arrive at the ultimate fact that it was not accidental without using the inference of a fall as one of the stepping stones. Yet this inference
A further question for consideration at this hearing is whether defendant in error furnished proper and timely proofs of injury, and its duration and extent, as required by the contract. This question involves an examination of the evidence as to Avhat defendant in error did in compliance Avith a letter of the plaintiff in error addressed to him January 26th, 1898, a few weeks after the accident, stating that certain blanks for final proof Avere enclosed, “which you will please return, properly executed, as soon as you have recovered.” The blanks referred to were a final statement of claimant’s physician and claimant’s own final statement. On January 16, 1899 — a year and eight days after the injury — claimant’s disability continuing throughout that period, he sent to the company the following letter: “I enclose herewith physician’s final report in my case, my OAvn report, and physician’s first statement having been forwarded to you shortly after the accident.” On January 20, 1899, the company replied, acknoAvledging the receipt of physician’s final statement or report, but stating that claimant’s OAvn final report had not been
By the Court: For the reasons stated in the foregoing opinion, the former decision in this case is adhered to, and the judgment of the district court is
Affirmed.