Fidelity & Casualty Co. of New York v. Getzendanner

The accident policy declared on insured John A. Getzendaner in the sum of $25 per week against bodily injuries sustained through external violent and accidental means, as follows, quoting its second clause: `Or if such injuries, independently of all other causes, shall immediately, continuously, and wholly disable and prevent the assured from performing any and every kind of duty pertaining to his occupation, the company will pay the assured the weekly indemnity before specified, during the continuance of such disability, but not exceeding fifty-two consecutive weeks.' "The occupation of the assured was that of `visiting yards and ranches, buying and selling cattle not in transit.' During the life of the policy, about January 10, 1897, while engaged in driving a cow on horseback, the assured, his horse stumbling, fell to the ground, and though there were then no signs of physical injury, on the first day of March following became wholly insane and has ever since been confined in the lunatic asylum. "According to the agreed statement of facts, whether this insanity was caused by the fall from the horse, or whether the assured `for a month or six weeks after the accident was up and about and attending to his business,' were controverted issues, upon which the testimony would have sustained a verdict either way. "The fourth paragraph of the agreed statement of facts reads: `The testimony was conflicting as to whether the injury of the assured resulting from the accident, did or did not, independently of all other causes, immediately, continuously and wholly disable and prevent him from performing any and every kind of duty pertaining to his occupation, but there was sufficient evidence to support a verdict for either party upon this issue.' "There was no other controverted issue of fact. "The main contention of appellant is that the court erred in submitting the issue of total disability to the jury, the charge reading: "`If you believe from the evidence that John A. Getzendanner sustained the injury alleged in plaintiff's petition through external violent and accidental causes in the manner alleged, and that such injury independently of all other causes immediately and continuously after such injury was sustained, disabled and prevented said John A. Getzendanner from performing any and every kind of duty which was materially essential to his occupation stated in the insurance policy introduced in evidence, in a manner reasonably as effective as you believe the same would have been performed by said John A. Getzendanner if he had not sustained said injury, then you will find for the plaintiff and *Page 490 intervener against the defendant for the sum of twenty-five dollars per week for each and every week, not to exceed fifty-two consecutive weeks, that said John A. Getzendanner was so disabled. The word "immediately" in the sense used above and in following portions of this charge refers to the proximity of time with the alleged injury and means the same as the word "presently." The burden is upon the plaintiff and intervener to make out their case by a preponderance of the evidence, and if they have not done so you will find for the defendant. "`You will find for the defendant unless you believe from the evidence that the disability, if any, of John A. Getzendanner alleged in said petition immediately followed the injury, if any; or unless you believe that said injury, if any, independently of all other causes, continuously disabled and prevented said Getzendanner from performing any and every kind of duty materially essential to his occupation in a manner reasonably as effective as you believe he would have performed the same but for said injury; or unless you believe that said injury, if any, was sustained from external violent and accidental means.' "In so far as this charge instructed the jury that appellee's case would be one of total disability, if the injury complained of prevented him from performing the duties of his occupation `in a manner reasonably as effective as * * * he would have performed the same but for said injury,' it had the effect of making partial disability the equivalent of total disability, and was therefore clearly erroneous. The vice of the charge is in the language just quoted. The cases cited in appellees' brief to sustain the charge, so far from doing so, are quite to the contrary, the language of the policy in one of them, Hohn v. Interstate Casualty Co. (Mich.), 72 N.W. Rep., 1105, being identical with the clause construed in this case. See, also, Lobdill v. Laboring Men's Association (Minn.), 71 N.W. Rep., 696. "But whether this error should require a reversal of the judgment is another question. It seems from the condensed statement of facts that the evidence was such that the jury might have found that appellee `for a month or six weeks after the accident was up and about and attending to his business,' but might have also found that he was not; but whether or not there was any evidence from which the jury might have found that he was `up and about and attending to his business' less effectively than he would have attended to the same but for said injury, the record is wholly silent. We are therefore unable to determine whether there was any evidence of partial disability, as contradistinguished from total disability. That is to say, the testimony of the witnesses relied on by the appellant may have been to the effect that for six weeks after the accident he was attending to his business in the usual way and as effectively as ever, while that relied upon by appellee may have warranted the jury in finding that he could not and did not attend to it at all after the accident. "The error in the charge therefore may have been purely abstract. We hardly think that we would be warranted in reversing the judgment *Page 491 upon the assumption that there might have been evidence of partial disability, as contradistinguished from total disability. It is incumbent upon the party seeking the reversal of a judgment to show by the record the materiality of the error of which he complains. True, it may be said that, if no such issue was presented by the evidence, that would itself be an insuperable objection to the charge; but we have searched appellant's brief in vain to find any complaint of the charge upon that ground. "None of the other assignments are well taken. The judgment is therefore affirmed." Filed November 4, 1899. ON MOTION FOR REHEARING.