Opinion
No. 33551
Decided December 16, 1953.
Insurance against death resulting from accident and total disability within 90 days — Failure of proof — Judgment non obstante veredicto.
APPEAL from the Court of Appeals for Trumbull county.
This action was brought by a beneficiary of an insurance policy to recover on such policy issued by defendant and insuring against loss of life "resulting directly and independently of all other causes from accidental" bodily injury if such injury "totally and continuously disables the insured and results in death within ninety days" after such injury. The beneficiary claims that the insured, while moving a refrigerator from one side of her kitchen to the other, suffered an accidental internal injury, continuously and totally disabling her from that time until her death which occurred within 90 days thereafter.
The cause was tried to a jury which rendered a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict was sustained and judgment was rendered for defendant.
The Court of Appeals reversed the judgment and remanded the cause for further proceedings according to law.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Sieman, Sieman Sieman and Mr. Arthur W. Palmer, for appellee.
Messrs. Hoppe, Day Ford, for appellant.
The record discloses that the insured went to work at her usual employment on the day of the alleged accident and worked full time every working day scheduled between the time of the alleged accident and the date on which she went to the hospital, 48 days later. She did not consult a physician until about three weeks after the alleged accident. After entering the hospital she underwent an operation which was described as successful, and the recovery was uneventful until three days later when she died from pulmonary embolism.
Plaintiff having failed to establish continuous total disability resulting in death within 90 days after the alleged accident, the trial court was correct in entering judgment for defendant non obstante veredicto.
The judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.
WEYGANDT, C.J., and ZIMMERMAN, J., concur for the further important reason that the record fails to disclose that the insured slipped, fell or in any other way experienced an accident at the time the claimed injury is alleged to have occurred.