70 Neb. 24 | Neb. | 1903
In this action on a certificate of accident insurance issued by the Woodmen Accident Association to the late I)r. Hamilton, of Coleridge, Nebraska, two grounds for the reversal of a judgment in favor of the plaintiff below are alleged in this court. One, that the court below erred in sustaining a demurrer to paragraphs five and six of the association’s amended answer, and the other, that the evidence is not sufficient to support the verdict.
Paragraphs five and six, to which demurrer was sustained, are as follows:
“Fifth. Further answering, this defendant alleges that said Augustus Hamilton, while said certificate of insurance was in full force and effect, and on the 26th day of March, 1900, received an accidental injury within the provisions and terms of said certificate sued on; that in the due course of time and in accordance with the provisions and terms of said certificate, said Augustus Hamilton presented to this defendant his proofs of injury in support of his claim for damages, covering the injury which occurred to him on said date; that in said claim and proof for said injury, said Augustus Hamilton claimed a greater sum than $37.50, and the defendant denied such liability but claimed that he, the said Augustus Hamilton, was entitled to a less sum on account of said injury, but as a full and complete settlement and satisfaction of any and all claims or demands which he, the said Augustus Hamil*26 ton, had, or might have, against the defendant on account of said injury received by him on the 26th day of March, 1900, the said defendant paid said Augustus Hamilton on the 22d day of May, 1900, the sum of $37.50, which said sum said Augustus Hamilton received in full satisfaction and accord, and in full settlement of all claims he had, or might have, against said defendant on account of said injury; that any and all claims that could lawfully be urged against this defendant association by Augustus Hamilton, deceased, or any other person, was then and there by said payment of said money and the giving of the receipt therefor fully liquidated, settled and paid, and that any and all liability of this defendant association on account of said injury received by said Augustus Hamilton on the 26th day of March, 1900, or the resulting consequences thereof, was fully settled, adjusted and paid by the payment to said Augustus Hamilton of said $37.50 as aforesaid.
“Sixth. Further answering, this defendant says that said Augustus Hamilton received no injury from accidental means within the terms of said policy of insurance from and after the date of March 26, 1900, to the time and date of his death, and that the plaintiff herein, being the beneficiary named in the said certificate sued on, ought not to recover herein because the injury complained of, which occurred to Augustus Hamilton, deceased, on the 26th daj of March, 1900, was fully settled for, and all damage thereunder paid by this defendant to said Augustus Hamilton in his lifetime, which said settlement was made with the full and complete understanding and knowledge between the parties thereto that said settlement and payment, as • aforesaid, included and covered every and all claims that were, or might be urged, against the defendant society, on account of the accidental injury received by said Augustus Hamilton on said 26th day of March, 1900. Defendant further alleges that the settlement and payment to said Augustus Hamilton by the defendant, as aforesaid, for the Injury received by him on March 26, 1900, has never been changed or modified in any respect.”
It will be remembered that the claim of plaintiff is by reason of the death of the insured. The allegations of paragraph five are that the insured presented to defendant proof of injury in support of a claim for damages, claiming a greater sum than $37.50; that defendant denied, liability to that amount but paid him, “as a full and complete settlement and satisfaction of any and all claims” on account of the injury, on May 22, 1900, the $37.50: that the insured received it “in full settlement of all claims he bad, or might have, against defendant on account of the said injury.”
It is alleged, evidently as a mere legal conclusion from this, that all claims which could be urged against defendant by any other person, on account of this injury, were by the payment of this money, and the giving of a receipt for it, fully settled, and the liability of the defendant association, on account of the accident, adjusted and paid.
The sixth paragraph says that the doctor received no accidental injury after the settlement, and that plaintiff should not recover, because the injury of March 26 was fully settled for, and that this settlement “included and covered every and all claims that were, or might be,-urged against the defendant society on account of the accidental injury received by said Augustus Hamilton on said 26th day of March.” It is also alleged that the settlement had never been modified.
It will be observed that these allegations, in terms, refer only and solely to injuries received by and damages accruing to Dr. Hamilton. It will be observed, too, that the language does not in express terms refer to any future damage or injury that might result from the accident. It is true that it mentions, as above shown, “every and all claims that might be urged” against the defendant on account of the accident, but the allegation does not relate to
It is probably true that plaintiff and her counsel were at the time claiming, as they do now, that a vested right accrued to her, at once, at the time of the accident, which could not be settled for between the defendant and her husband without her assent, and it seems that the action of the trial court was based upon such supposition; but it does not matter upon what basis the trial court acted, if its action was right. In our opinion, if the defendant in this case really had the defense, which was held good in Wood v. Massachusetts Mutual Accident Ass’n, 174 Mass. 217, 54 N. E. 541, it should have set out that defense in plain terms; that is, defendant should have alleged distinctly that the $87.50 paid to Dr. Hamilton, on account of this injury, was paid not merely on account of the loss and suffering then already accrued to him, but was paid, also, on account of the relinquinshment and the surrender of all right and claim for any damage or injury which might thereafter accrue.to him, or to the beneficiary, by reason of the accident. It would be by a very liberal construction of these allegations, that their language could be
Tliere is very little doubt that the facts are set out as fully and as favorably for the defense as the truth would admit, but we are of the opinion that the trial court was right in holding that they did not disclose a defense. Whether such holding was based on the insufficiency of the allegations themselves, or on the supposition that after the accident the beneficiary had a vested interest in the policy, does not seem material. Nor does it seem to be necessary to decide tlie latter question in the absence of a distinct allegation that the matter of the future liability to the beneficiary was distinctly included and covered by the terms of the settlement agreement. There seems no doubt that the fair interpretation of the language of these allegations is that tin1 settlement of claims “which were, or might be1, urged against the defendant,” had reference solely to claims them (existing, or which might have been urged on account of facts which had already transpired. A settlement, to do away with defendant’s liability after an accident had already occurred, should be much more explicit.
The other question, as to the sufficiency of the evidence to sustain the verdict, is given very little attention by plaintiff in error and seems hardly to have merited more. It is true that the death of the insured on June 10 was the result of a complication of diseases, but the evidence tends very strongly to indicate that they resulted from a violent-injury to his liver, which came from the runaway accident of March 20. We do not feel dis|)osed to disturb the finding of the jury in reference to this matter.
It is recommended that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
The following opinion, overruling a motion for rehearing, was filed January 6,1904:
This is a motion for a rehearing.
The contention that the decision in favor of defendant in error ought not to stand because her counsel failed to point out the true reason for affirming the judgment, is- entirely without merit and must be rejected. Unless there is material error in the record of the trial court, its judgment, upon whatever theory it may have been defended, Avill be affirmed.
The second ground of the motion is that the decision is Avrong because it is grounded upon the assumption that Mrs. Hamilton, the beneficiary named in the certificate, had a vested interest therein from the time of the accident Avhich resulted in her husband’s death. Evidently, counsel have not carefully read the opinion of Commissioner Hastings. In this state, by express statute, members of mutual benefit associations have the right at any time, Avith the consent of the association, to substitute one beneficiary for another. Until the death of the certificate-holder, the bene
We adhere to the judgment of affirmance, not because Mrs. Hamilton had a vested interest from the time of the accident, but because her contingent interest was not intended to be, and Avas not, in fact, covered by the contract pleaded as a defense.
Motion overruled.