165 Ind. 52 | Ind. | 1905
This action was instituted by Eliza Lloyd, appellee, beneficiary under an accident insurance policy issued to her husband, William M. Lloyd, by appellant on September 11, 1901, to continue in force one year from date. William M. Lloyd’s death occurred on October 22, 1901. The action is based upon the policy, and proceeds upon the theory that the decedent sustained a fall while traveling on a sidewalk on October 3, 1901, causing his death.
Under issues formed by the general denial, there was a trial, verdict and judgment for plaintiff for the full amount of the policy.
There can be no question that the cáuse of death of the insured is sufficiently alleged in the complaint, and the stipulation will, therefore, eliminate from our consideration all questions presented by the record except those arising under the motion for a new trial. Chief among the reasons assigned in the motion are the insufficiency of the evidence to sustain the verdict, and that the same is contrary to law. The insistence of appellant is that there is a total absence of evidence to show that Lloyd’s death resulted
We are not called upon to consider the weight of the evidence and decide whether the preponderance is with the appellee, if there was evidence on both sides, but, the burden being on the appellee, it must appear that there was at least some evidence, direct or inferential, in support of the contested proposition. If, however, we find any legal evidence in support of all the essential facts in the matter controverted, we must assume that such evidence was sufficient to satisfy the jury as against all the adverse evidence, and leave the facts so found undisturbed.
Appellee’s theory of the case, which was evidently adopted by the jury, seems to be that the insured, who was a boss roller'in a rolling-mill, being in good health, having eaten his supper, left his boarding-house in the twilight of the evening on October 3, 1901, to go to the post-office, about two and one-half blocks away; that when he had covered about one-half of the distance he struck his toe against a water box that protruded two inches above the sidewalk, whereby he was thrown violently to the ground, the shock caused by the fall producing cerebral hemorrhage, which caused his death on the 22d day of the same month.
It is not debatable that there was sufficient evidence to warrant the jury in finding that Lloyd stubbed his toe on a wate’r box and fell violently onto the board sidewalk, or into the macadamized gutter. The question now is, was there evidence produced at the trial to the effect that the fall so received was the only active, efficient and proximate cause of the death of the insured ? The cause of death was a question of fact for the jury, and our task is done if we find there was some legitimate evidence in support of their
An autopsy, witnessed by Dr. Schleiker, was held on the body, which revealed the existence of a tumor surrounding the right middle cerebral artery, obscuring about two inches of the artery. This artery is the only source of blood supply to a portion of the brain. A tumor of this size and form requires from six months to two years to form. The encroachment of the tumor upon the caliber of the artery tended to inflammation, and ultimately to blood clot, which would cut off from a part of the brain the blood supply, by obstructing the artery. There was further testimony that in tumor of the brain there are usually premonitory symptoms, and in hemorrhage of the brain practically none. The characteristic difference between tumor and hemorrhage being that in cerebral hemorrhage the onset is rapid, and in
The defendant produced evidence contradictory of the hemorrhage theory, and which tended to show that there was neither hemorrhage nor arterial rupture, and that both the fall and the death of Lloyd were caused by the formation of a blood clot within the walls of the diseased artery, which at the point of the tumor plugged the channel and cut off the supply of blood to a portion of the brain. Hot-withstanding this view was rejected by the jury, appellant contends that the plaintiff failed to make out her case within the terms of the insurance contract, because she has shown by her own witness, Dr. Schleiker, that the insured’s •death ensued partly from accident and partly from the diseased and weakened condition of the artery.
This evidence, when considered together with the testimony of Dr. Schleiker, the insured’s age, his weight, the unexpectedness and severity of his fall, the speedy development thereafter of symptoms of brain pressure, the total absence of all premonitory symptoms of tumor or brain disorder prior to the fall, leaves no room for argument but that the jury had before it legal evidence, both direct and indirect, in support of its conclusion that Lloyd’s death was caused by accident, independently of all other causes. And it makes no difference whether it found that the cause closest the death was hemorrhage of the brain, or an organized blood clot within the walls of the cerebral artery. It had the right to find that the accidental fall was the cause that put his life in jeopardy, because it incited the fátal energy of the tumor, which was at least dormant, and would have remained so for an indefinite period, and, perhaps, until death from some other cause would have supervened. The tumor had impaired the resisting strength of the artery, but had not effected immediate danger to life. It was proper under the evidence for the jury to view the impairment as a condition, and not as a cause, and to find that the fall was the originating, efficient, direct and proximate cause of death; that is, that the fall set in motion a force that progressed upon present existing conditions in natural,
In the Missouri case, supra, the conditions of the accident policy were almost identical with the one under consideration. The insured, who was and had been for years apparently in good health, preparatory to leaving his office, took up a window pole for the purpose of closing a window, the upper sash of which had been let down. The sash was
In answering the contention that the rupture was due to weakness effected by the cancer, and that death did not result from the fall “independently of all other causes,” and in holding that the cancerous condition of the kidney was a remote, and not a proximate, cause, the court said: “The causes referred to in the policy are the proximate or direct, not the remote causes. This was evidently the view of the trial court when it modified the second instruction asked by defendant, inserting the word ‘direct’ before the word ‘cause,’ thereby directing the jury that they could not find for the plaintiff unless they found that ‘the accident was the sole and only direct cause of the death of the insured,’ and that view of the law was correct.”
In the Massachusetts case, supra, the provisions of the policy are substantially the same as in the present case. The-insured died of peritonitis, induced by a fall. It was shown that the deceased had previously had peritonitis in
It is contended by appellant that since it is not shown that the doctor who exchanged remarks with the witness was the authorized representative of appellant, his remark, "Keep quiet,” was irrelevant and improper, and, on account of the peculiar delicacy of the subject to which it related, was greatly prejudicial. However improper and prejudicial, appellant seems to be without relief, for it has brought no question here for our decision. There was no motion made to strike it out. The remark was not invited by the question, and was in no sense responsive to it. The question propounded to the witness was, "What was that remark?”—that is, the remark that caused the witness to believe that the doctor who addressed him participated in the post-mortem. Considered in connection with the inquiries that preceded, the question is plainly limited to the single fact. That the question was so understood by the witness is manifested by his pertinent and complete answer
Divers other adverse rulings relating to the admission and exclusion of evidence, and the refusal of the court to sign the instructions given to the jury, that were assigned as reasons for a new trial, are suggested by appellant as constituting reversible error. Notwithstanding none of them are presented in compliance with subdivision five of rule twenty-two of this court (see Buehner Chair Co. v. Feulner [1905], 164: Ind. 368), we have nevertheless given consideration to each, and find no error.
Judgment affirmed.