| Ky. Ct. App. | Nov 16, 1910
Opinion of the Court by
Reversing.
The appellant company issued to Dr. John T. Bethel a policy of accident insurance that was in full force at the time of his death in April 1909. In one clause, it was provided that the company in consideration of stipulated premiums would, pay the insured the—
“Sum of twenty-five dollars per week indemnity against loss of time resulting from bodily injuries effected, during the term of this insurance, through EXTERNAL, VIOLENT AND ACCIDENTAL MEANS, which shall, independently of all other causes, immediately, continuously and wholly disable him from prosecuting any and every kind of business pertaining to his occupation, above stated; or if such injuries shall not
Following this clause there are several others, providing compensation and indemnity for injuries resulting in the loss of feet, hands and other members of the body; and then this one:
“If death results solely from such injuries within ninety days the said company will pay the principal sum of five thousand dollars to Bell Bethel, his wife. * * * In event of death following bodily injuries of which there existed no external or visible mark upon the body of contusion or wound sufficient to cause death (accidental drowning only excepted) and an autopsy showed that such injuries materially contributed to the death of the insured, then in all such cases referred to in this paragraph, the limit of this company’s liability shall be one-fifth the amount otherwise payable under this policy, anything to the contrary in this policy notwithstanding. ’ ’
It was further provided that:
“Immediate notice in writing of any accident or injury on account of which claim is to be made shall be given said company at Hartford,. Conn., with full particulars and full name and address of the insured; and unless affirmative proof of death, loss of limb or sight, or duration of total or partial disability, and that the same was the proximate result of external, violent and accidental means, is so furnished within five months as to death, loss of limb or sight, from the happening of such accident, * * * the company shall be released from all liability for the payment of any claim based thereon.”
About 11 o’clock on the morning of April 6th, 1909, Dr. Bethel, returning from a visit to a patient, drove his buggy up to his home, and while attempting to alight therefrom fell to the ground, and on April 23d, 1909,
The petition, after reciting, the clauses of the policy under which the company agreed to pay the amount claimed, and that have been heretofore set out, averred that:
“On or about the-day of April,’1909, the insured, the said John T. Bethel, while attempting to get out of his buggy in front of his office in the city of Henderson, By., through external, violent and accidental means, fell and sustained such injuries to his head and body as, independently of all other causes, resulted in his death on the 23d day of April, 1909. * * * Plaintiff says that as soon as she learned of the cause of the insured’s death, and was informed of the defendant’s liability therefor under its said policy, to-wit: On the 26th day of July, 1909, she notified the defendant in writing, addressed to it at Hartford, Conn., of said accident and injury to the insured and his resulting death, giving in said notice the full name of the insured and the number of his insurance policy with defendant, and requested the defendant to furnish her with blanks for making up proofs of death. She says that said notice was received by the defendant, -but that it did not reply to same, and that it neglected and refused to furnish her with said blanks for proofs of death; that it was the custom of the defendant to furnish such blanks. * * *
It further -averred in substance that in August, 1909, the company sent its adjuster to Henderson to investigate the claim, and the adjuster represented tq plaintiff that he wanted the names of the witnesses to the accident, and the physicans who attended him, so that he could make a full and complete investigation for his company, and that as soon as said investigation was made the defendant would notify plaintiff whether or not her claim would be paid. That relying upon said representations she gave the agent such information as he desired, and he made a full investigation of said claim, but that the company never notified her whether or not it would pay said claim, nor requested of her further
To this petition the compunja filed a general demurrer, which was overruled. It then answered, denying that Dr. Bethel through external, violent or accidental means fell or sustained such injuries or any injuries to his head or body as, independently of all other causes, or at all, resulte.d in his death; or that his death was due or caused by said accident.
In another paragraph it pleaded “that no accident that befell the said Bethel, caused any external or visible marks upon his body of contusion or wound, and there did not exist any external or visible mark upon his body of contusion or wound at all; nor was any autopsy had over his body.” It then set up the terms of the policy, providing that unless there existed external or visible marks upon the body of contusion or wound sufficient to cause death, the company would, not in any event be liable exceeding one-fifth of the amount otherwise payable under the policy. But did not raise any issue .or question as to the sufficiency of the notice of the injury or the proofs of loss.
A trial before a. jury resulted in a verdict in favor of the appellee for five thousand dollars. From the judgment upon this- verdict this appeal is prosecuted.
The first error assigned is that the petition did not state a good cause of action (1) because it failed to allege that the accident “independently of other causes, immediately, continuously and wholly disabled the insured from prosecuting any and every kind of business pertaining to his occupation,” (2) it failed to state sufficiently that the company was furnished with notice and proofs of injury and death.
It is the contention of counsel for the appellant that the petition should have stated not only that the injury received by Dr. Bethel resulted from external, violent and accidental means, independently of all other causes, but that such injuries “immediately, continuously and wholly disabled the insured from prosecuting any and every kind of business pertaining to his occupation.”
The contract of insurance contains several indemnity features, some of them providing compensation for total disability, others compensation for partial disability,
The next reason for insisting that the demurrer should have been sustained is that the petition does not sufficiently show that notice or proofs of loss in compliance with the contract of insurance were furnished to the company. The policy provides that “immediate notice in writing of any accident or injury on account of which claim is to be made shall be given said company at Hartford Conn., with full particulars and full name and address of the insured * * *.” But the failure to furnish immediate notice is not a condition precedent to a recoveiT- The word “immediate” is not to be construed literally, but as meaning that notice must be furnished within a reasonable time, and in such time as the beneficiary can reasonably obtain information upon which to base it. It may often happen that the beneficiary does not imxnediately know or cannot at once decide whether or not any claim for compensation or indemnity will be presented, or does not know immediately that the injury the insured sustained was due to causes that under the contract entitled him to compensation or indemnity. It is, of course, important to the company that it shall receive within a reasonable time and as soon as the circumstances and facts of the case will perxnit, notice that a claim will be presented against it for compensation, or indemnity, so that it may have opportunity to make such ixxvestigations as it considers necessary while the facts aro fresh in the minds of the persons acquainted with them, and take steps to obtain such in-fox-mation as it desires concerning the caxfse as well as
But, aside from what we have said, there is another conclusive reason why the company can not now raise any question about- the sufficiency of the notice or the proofs of loss or the failure to furnish either of them in due time. If it desired to resist the payment of the policy upon the ground that the notice or proofs of loss were not furnished, or were not furnished in due time, it should have raised this issue in its answer, and its failure to do this was an admission that the requirements of the policy in this particular were sufficiently complied with. When the petition sets out a substantial compliance with, the contract of insurance in respect to furnishing preliminary notice and proofs of loss, or states facts that will amount to a waiver by the company of the right to demand them, and the answer does not make any issue upon this question, it cannot thereafter be raised either in evidence or argument. On the other hand, if an issue is made by the answer, then it becomes a question of fact to be determined as are other questions of fact, and the court should instruct the jury concerning it. Knickerbocker Ins. Co. v. Schneider, 100 U. S., 25 L. Ed., 695; Lancashire Ins. Co. v. Monroe, 101 Ky., 18.
8The next error assigned is that the wife of Dr. Bethel, and the beneficiary in the policy, was permitted to testify. It is not competent for the widow to testify as to conversations-, or transactions had with her husband. But, she may give evidence concerning his appearance and condition, as these are facts that do not come to her knowledge by reason' of the marital relation, but may be known and seen by all persons who have opportunity to and do observe the condition of the husband. Fidelity & Casualty Co. v. Cooper, 126 S.W. 111" court="Ky. Ct. App." date_filed="1910-03-15" href="https://app.midpage.ai/document/fidelity--casualty-co-v-cooper-7137664?utm_source=webapp" opinion_id="7137664">126 S. W., 111; Metropol
Another question raised by counsel for appellant relates to the form of question asked the medical witness introduced by counsel for appellee, and the answer thereto. The immediate cause of the death of Dr. Bethel was the disease known as auto-intoxication, and a physician introduced was asked questions of which this is an example: “I will ask you whether or not the fall of which he told you, in your opinion produced auto-intoxication?” The witness, who had theretofore explained what auto-intoxication was, answered, “In my judgment, that was the cause.” This question, as well as the answer, was objectionable. It is permissible in the examination of a witness introduced as an expert, to submit a hypothetical question, and ask his opinion thereon; or, if the witness has personal knowledge of the matter he is inquired of concerning’, he may give his opinion based on such knowledge. But the question should not be put in such form as to make the answer the conclusion of the witness, instead of his opinion. It is the office of the expert to express an opinion and the province of the jury to draw its own conclusions from the opinion, so expressed. Here, the witness not only expressed his opinion, but also drew from his own opinion a conclusion upon a question which was the very matter in issue. The facts upon which the opinion of the expert was desired should have been submitted to him in a question, and his answer should have been his opinion, and not his conclusion. The witness stated that the fall produced auto-intoxication, when this was the question the jury was called upon to decide. The witness should have been asked, if in his opinion a fall such as Dr. Bethel received would produce auto-intoxication; -and should have confined his answer to an expression of Opinion upon this question, in place of testifying that the auto-intoxication was the result of a fall. Aetna Life Ins. Co. v. Kaiser, 115 Ky. 539" court="Ky. Ct. App." date_filed="1903-05-13" href="https://app.midpage.ai/document/aetna-life-insurance-v-kaiser-7135290?utm_source=webapp" opinion_id="7135290">115 Ky. 539; Baehr v. Union Casualty Co., 113 S.W. 689" court="Mo. Ct. App." date_filed="1908-11-16" href="https://app.midpage.ai/document/baehr-v-union-casualty--surety-co-6623082?utm_source=webapp" opinion_id="6623082">113 S. W. 689; Davis v. Travelers Ins. Co., 59 Kansas, 521, 52 P., 67" court="Kan." date_filed="1898-02-05" href="https://app.midpage.ai/document/davis-v-travelers-insurance-7890760?utm_source=webapp" opinion_id="7890760">52 Pacific Rep., 67.
We have reserved for the last the most serious question raised by counsel, and which is, that .the verdict upon the whole case, is flagrantly against the evidence, and especially so as to the recovery in excess of one thousand dollars. In the consideration of this question,
Q. Just tell what you found when you saw Dr. Bethel on April 8th?
A. I found a very sick man. He had headache and pains; had distension of the bowels; had some diarrhea; and fever and rapid pulse, quick; not in a very clear mental condition, at times delirious and talked off.
Q. How often did you visit him?
A. I visited him every day and sometimes twice; sometimes three or four.'
Q. What was the progress of the disease from the time you first saw him?
A. He never improved, grew constantly worse until his death.
A. Auto-intoxication, as we regarded his condition.
Q. Can you say what produced that, in your opinion?
A. Autd-intoxication is the absorption from the intestinal canal of the poisonous products, and this poisoned him and killed him.
Q. Tell what you learned from Dr. Bethel, and when you diagnosed his case, what time were you called first?
A. Early in the morning, perhaps 1-or 8 o ’clock. He had been right sick during the night, but they had not called me until daylight.
Q. From whom did you get the history of the case?
A. From. him.
Q. Tell the jury what was the history of that case?
A. In getting the history, he said to me that he had had a fall out of his buggy, and that he thought it shook him up worse than the other fail. He had reference to ■the fall he had when he fractured his rib, and for which I didn’t attend him, but I saw him socially during that time, and this was the fall he was referring to when he said this last fall shook him up worse than the other fall.
Q. What causes auto-intoxication?
A. Anything that will prevent nature from taking care of the products entering the alimentary canal and thus allowing it to ferment in the system; anything that will prevent the liver from secreting its bile, and the stomach from doing its part; anything that would prevent any of these would contribute to auto-intoxication. In this case, the most satisfactory explanation of the case was this history of the fall that he had at that time which shook him up, and his alimentary track was not doing the work, and we were never able to make it do the work to amount to anything at all.
Q. I will ask you whether or not the fall of which he told you, in your opinion, produced this auto-intoxication?
A. In my judgment that was the cause. Anything that would shake up the nervous system to such an extent as to paralyze, would cause these organs to go on a strike, and we were never able to make them work any more.
Asked if auto-intoxication was not the absorption of poisonous products from the intestinal canal, he answered, “Auto-intoxication can and does come from that. If there is poison of whatever cause in there, and it is absorbed, it will produce auto-intoxication.
Dr. Dixon, called as a witness for the appellee, said that when he was called in, some days after Dr. Bethel was first attacked, he found him suffering from auto-intoxication and that this disease was the cause of his death. Asked to explain to the jury what auto-intoxication. was, he said:
• “Auto-intoxication is a condition wherein a man is poisoned by products which have formed in his own body. Auto means by itself; intoxication, a condition of poisoning. An auto-intoxication means the absorption óf these poisons that are generated- in the body of the man. They are not generated from the outside, but are generated from the inside, and they get into his circulation and interfere with his metabolism. Metabolism is that change that -is constantly taking place "in a man’s body. Now, auto-intoxication can be brought on by an alteration of the metabolism; frequently it comes by acute indigestion. Some condition that would tend to lower the vitality and make the man a fit subject for auto-intoxication. It can be produced by bodily injuries,
It will be observed that although the evidence establishes that Dr. Bethel’s death was due to auto-intoxication, the evidence that it was produced solely by the fall is very unsatisfactory. Auto-intoxication, as testified to by the physicians, is a disease that may be caused by a fall or by anything else that debilitates the system, lowers the vitality or lessens the capacity of the intestinal organs to perform their usual functions. The only witness who testified that the auto-intoxication was due ■to the fall is Dr. Hancock,- and the effect of his testimony is greatly weakened by the fact that although three other physicians were called in consultation with him, he did not mention to any of them the fact that Dr. Bethel had a fall or that the disease he was suffering with was attributable t-o it or an injury of any kind. Its force as probative evidence that the fall, caused the disease, is also much diminished by the fact that in the preceding February, Dr. Bethel suffered with an attack of auto-intoxication that was not produced by an accident, injury or fall, and-that his symptoms then resembled the symptoms from which he suffered in April. This evidence, and we have stated it quite fully, was not sufficient to sustain the verdict. It was indispensible to a recoyery that the evidence should show that the fall “independently of all other causes,” produced the death of Dr. Bethel. Of course, if the accidental fall was the proximate cause of the auto-intoxication, which was the immediate cause of his death, then under the terms of the policy his death was caused “by external, violent and accidental means independently of all other causes.” But the mere fact that he fell from the buggy was not sufficient to warrant a recovery unless the evidence showed that the auto-intoxication was produced independently of other causes by the fall, and it is at this vital point that the evidence for the appellee fails. It is true that there is some evidence that auto-intoxication may be produced by a fall; but, with the exception of the statement of Dr. Hancock, there is no evidence that the auto-intoxication in issue was produced by the fall, and his statement does not measure up to the requirements of the policy. The fall may have contributed in some degree to produce the auto-intoxication, but this is not enough. It is as fair to assume the auto-intoxication was due to natural causes as to the fall — in fact, the
“If the injury or death is dué to an accident, without the intervention of any diseased condition of the body, the company is liable. It is not liable where the injury or death happened in consequence of the disease or bodily infirmity, and not of the accident, or, where it is due both to the accident and the disease. But where the accident, and not the diseased condition, is the proximate cause of the death, the company is liable.”
We have examined the cases of Standard L. & A. Co. v. Thomas, 13 Ky. Law Rep., 593, Continental Casualty Co. v. Sample, 112 S. W., 1122; American Accident Co. v. Reigart, 94 Ky. 547" court="Ky. Ct. App." date_filed="1893-09-16" href="https://app.midpage.ai/document/american-accident-co-v-reigart-7132862?utm_source=webapp" opinion_id="7132862">94 Ky. 547; Omberg v. U. S. Mutual Ac. Assn., 101 Ky. 303" court="Ky. Ct. App." date_filed="1897-05-21" href="https://app.midpage.ai/document/omberg-v-united-states-mutual-accident-assn-7133597?utm_source=webapp" opinion_id="7133597">101 Ky. 303; as well as others, cited by counsel for appellee, but do not find that any of them are in conflict with the opinion we have expressed as to the insufficiency of the evidence in this case to sustain the verdict.
But, assuming that there was sufficient evidence to take .the case to the jury, the remaining quest: ™ is, was there any evidence at all to justify the jury in finding the full amount of the policy. It will be observed that the policy provides that:
“In the event of death following bodily injuries of which there existed no external or visible mark upon the body or contusion or wound sufficient to cause death, * * * the limit of this company’s liability shall be one-fifth of the amount otherwise payable under this policy.
The only evidence that there was any external or visible mark of contusion or wound upon the body or person of Dr. Bethel is that there was a spot or bruise on his head, said to have been caused by his head striking the ground when he fell from the buggy. And so the question is, was there sufficient evidence of contusion or wound to satisfy the requirement of this clause that the company by its pleading made it incumbent upon the appellee to bring her case within the terms of. It is apparent that the policy contemplates two kinds of accidental death, one in which there are external and visible marks upon the body of contusion of wound sufficient to
Wherefore the judgment is reversed with directions to proceed in conformity with this opinion.