| U.S. Circuit Court for the District of Eastern Wisconsin | Mar 15, 1885
On the twenty-third day of June, 1882, the defendant association issued to John S. Barry, then residing at "Vulcan, Michigan, but since deceased, what may be termed a contract of insurance, by which it agreed to pay his wife, Theresa A. Barry, a sum not exceeding $5,000, within 60 days after sufficient proof that, at any time within the continuance of membership of Dr. Barry in the association, he had sustained bodily injuries, effected through external, violent, and accidental means, and that such bodily injuries alone had occasioned death within 90 days from the happening thereof. - This is a suit brought by the beneficiary named in the policy to recover the amount of the insurance.
It is alleged that the deceased sustained an injury, within the meaning of the policy, on the twentieth day of June, 1883, and it is proven that he died on the twenty-ninth day of that month. There is no question, therefore, that if he was injured as claimed, he died within the time after the alleged injury named in the policy; nor is there any question that the policy was in force at the time of his death. By the terms of the policy it was provided, as already stated, that to entitle the beneficiary to the sum of $5,000, the death should be oc
It is claimed by the plaintiff that, on the occasion mentioned by Dr. Hirselnnan, when the deceased was at Iron Mountain, he sustained an injury by jumping from a platform to the ground; that this injury was effected by such means as are mentioned in tlie policy; that the deceased at the time of the alleged accident was in sound physical condition and in robust health ; and that the alleged injury was the proximate and sole cause of death. The defendant denies that the deceased sustained any injury that was effected through accidental means, and also contends that if any injury was sustained, it was one of which there was no external or visible sign, within the meaning of the policy; and that the supposed injury was not the cause of the death of the deceased, but that ho died from natural causes. The case therefore resolves itself into three points of inquiry: First. Did Dr. Barry sustain internal injury by liis jump from the platform on the occasion testified to by Dr. Hirselnnan’? Second. If he did sustain injury as alleged, was it effected through external, violent, and accidental means, within the sense and meaning of tlie policy, and was it an injury of which there was an external and visible sign? Third. If he was injured as claimed, was that injury the proximate cause of his death ? To entitle the plaintiff to a verdict, each and all of these questions must be answered by you in the affirmative; and if, under the testimony, either one of them must be negatively answered, then your verdict must be for the defendant.
The first question,—viz., was the deceased, Dr. Barry, injured by jumping from the platform,—is so entirely a question' of fact to be determined upon the testimony, that the court must submit it without discussion to your determination. In passing upon the question, you will consider all the circumstances of the occurrence as laid before you in tlie testimony, the apparent previous physical condition of Dr. Barry, the subsequent occurrences and circumstances tending to show tlie change in his condition, the relation in time which the first developments of any trouble bore to the time when he jumped from the platform, the nature of his last sickness, and the symptoms disclosed in its progress and termination. Further, you will inquire what evidence, if any, did the post mortem examination, and any and all subsequent examinations of the parts alleged to have been the seat of the supposed injury, furnish of an actual physical injury; what connection, if any, does there or does there not appear to be between the
If you find that injury was sustained, then the next question is, was it effected through external, violent, and accidental means ? This is a pivotal point in the case; and therefore vitally important. The means must have been external, violent, and accidental. Did an accident occur in the means through which the alleged bodily injury was effected? It does not help you to a proper conclusion to say merely that the injury itself, if there was one, was an accident or accidental. That was the result, and not the means, through which it was effected. The jumping off the platform was the means by which the injury, if any was sustained, was caused. Was there anything accidental, unforeseen, involuntary, unexpected in the act of jumping, from the time the deceased left the platform until he alighted on the ground? The term accidental is here used in its ordinary, popular sense, and in that sense it means “happening by chance, unexpectedly ; taking place not according to the usual course of things, ” or not as expected. In other words, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, then, I suppose, it cannot be called a result effected by accidental means. But if in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted from the accident, or through accidental means. We understand from the testimony,without question, that the deceased jumped from the platform with his eyes open, for his own convenience, in the free exercise of his choice, and not from any perilous necessity. He encountered no obstacle in jumping, and he alighted on the ground in an erect posture. So far we proceed without difficulty. But you must go further and inquire,— and here is the precise-point on which the question turns,— was there or not any unexpected or unforeseen or involuntary movement of the-body from the time Dr. Barry left the platform until he reached the ground, or in the act of alighting ? Did he or not alight on the ground just as he intended to do ? Did he accomplish just what he intended to, in the way he intended to ? Did he or not' unexpectedly lose or relax his self-control in his downward movement ? Did his feet strike the ground as he intended or expected, or did they not ? Did he or.not miscalculate the distance, and was
The defendant claims that if Dr. Barry did sustain injury, it was one of which there was no external and visible sign and therefore that the plaintiff is not entitled to recover. In the discussion of this question, counsel were understood to contend that no recovery could be had under a policy in the form and terms of this one, if the injury was wholly internal. In that view, the court cannot concur. It is true, there must be an external and visible sign of the injury, hut it does not necessarily follow from that that the injury must be external. That is not the meaning or construction of this policy. Such an interpretation of the contract as is contended for in that particular, would, in the opinion of the court, sacrifice substance to shadow and convert the contract itself into a snare, an instrument for the destruction of valuable rights. Visible signs of injury, within the meaning of this policy, are not to be confined to broken limbs or bruises on the surface of the body. There may he other external indications or evidences which are visible signs of internal injury. Complaint of
The next question is, if Dr. Barry was injured as claimed, was the injury the sole or proximate cause of his death ? Interpreting and enforcing the policy according to its letter and spirit, it must be held that if any other cause than the alleged injury produced death there can be no recovery. In short, to entitle the plaintiff to recover, you must be satisfied that the alleged injury was the proximate cause of death. Whether a cause is proximate or remote does not depend alone upon the closeness in the order of time in which certain things occur. An efficient, adequate cause being found, must be deemed the true cause, unless some other cause, not incidental to it, but independent of it, is shown to have intervened between it and the result. If, for example, the deceased sustained injury to an internal organ, and that necessarily produced inflammation, and that produced a disordered condition of the injured part, whereby other organs of the body could not perform their natural and usual functions, and in consequence the injured person died, the death could be properly attributed to the original injury. In other words, if these results followed the injury as its necessary consequence, and would not have taken place had it not been for the injury, then.I think the injury could be said to be the proximate or sole cause of death; but if an independent disease or disorder supervened upon the injury, if there was an injury,—I mean a disease or derangement of parts not necessarily pro- • duced by the injury,—or if the alleged injury merely brought into activity a then existing but dormant disorder or disease, and the death of the deceased resulted wholly or in part from such disease, then it could not be said that the injury was the sole or proximate cause of death. '
It is claimed by the plaintiff that the supposed jar or shock said to have been produced by jumping from the platform, caused some displacement in the duodenum; that it became occluded; that there was constriction and occlusion of that intestine, which was accompanied with consequent inflammation. In short, that the deceased had duodenitis as the direct, result of the alleged original injury, and, in con
Now, between these conflicting claims, weighing and giving duo consideration to all the testimony, you must judge. If the deceased died of some disease or disorder not necessarily resulting from the original injury, if there was an injury, then the defendant is not liable under this policy; but if the deceased received an internal injury which, in direct course produced duodenitis, and thereby caused his death, then the injury was the proximate cause of death.
Since the plaintiff has alleged in his complaint and claims that the deceased received an injury in the duodenum, I am asked by the defendant’s counsel to instruct you that if the deceased did not die of duodenitis, or if you should find that the alleged jump did not produce or result in a stricture of the duodenum, then your verdict should be for the defendant. This instruction I must decline to give, for my opinion is that if the deceased sustained internal injury in any part of his body, of which there was an external and visible sign, and if that injury was effected through the means named in the policy, and if such injury was the sole or proximate cause of death, then the plaintiff is entitled to recover.
As I once had occasion to observe in a case somewhat similar in general character to this, you ought not to adopt theories without proof, nor to substitute bare possibilities for positive evidence of facts testified to by credible witnesses. Mere possibilities, conjectures, or theories should not be allowed to take the place of evidence. Where the weight of credible testimony proves the existence of a fact, it should be accepted as a fact in the case. Where, if at all, proof is wanting, and the deficiency remains throughout the case, the allegation of fact should bo deemed not established.
Now, to briefly sum up the case: If you find from the evidence that the deceased, on the twentieth day of June, 1883, sustained a
Sote.—The cases cited by counsel, and considered by the court on the trial of this case, were Whitehouse v Travelers' Ins. Co. 7 Ins. L.J. 23" court="None" date_filed="1877-10-15" href="https://app.midpage.ai/document/whitehouse-v-travelers-ins-co-9300782?utm_source=webapp" opinion_id="9300782">7 Ins. Law J. 23; Southard v. Railway Pass. Assur. Co. 34 Conn. 574" court="Conn." date_filed="1868-07-06" href="https://app.midpage.ai/document/southard-v-railway-passengers-assurance-co-6578678?utm_source=webapp" opinion_id="6578678">34 Conn. 574; N. A. Life & Acc. Ins. Co. v. Burroughs, 69 Pa. St. 43; and McCarthy v. Travelers' Ins. Co. 8 Ins. Law J. 208.