Dreher v. Order of United Commercial Travelers of America, 173 Wis. 173

Dreher v. Order of United Commercial Travelers of America

173 Wis. 173 | Wis. | 1921

Owen, J.

The accident insurance policy or certificate upon which the action is based indemnified deceased “against the results of bodily injury hereinafter mentioned effected through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident alone and independent of all other causes.” Plaintiff forwarded to the company .proofs of death on blanks furnished by it, in which it was stated that the death of the deceased was due to “asphyxia, overcome by fumes of running automobile engine.” The company denied liability'-, by reason of the express provision in the certificate that benefits thereunder should not extend to death, disability, or loss resulting from inhaling of gas or asphyxiation (vol-untax-y or involuntary, conscious or unconscious). Without amending the proofs of death or assigning a different reason for the cause of death, plaintiff commenced this action by service of summons on the 16th day of January, 1918. Defendant answered, alleging that deceased met his death as the result of inhaling gas and asphyxiation, and that there *177was no external, visible mark of accident upon his body, and that external, violent, and accidental means producing bodily injury were not the proximate, sole, and only cause of the death. Thereafter and on the 19th day of November, 1919, and before the trial of the action, plaintiff attempted to amend the proofs of death by causing to be served upon defendant’s attorney a notice signed by her attorney to the effect that “the plaintiff amends the proofs of accident heretofore furnished by her to modify, amplify, correct, and explain them in the particulars pointed out and in conformity with information, data, and material evidentiary facts not within the personal knowledge or recollection of the plaintiff at the time of the making out of said proofs of accident;” and, among other things, it was stated in said notice that the cause of the death of the deceased, which was given in the original proofs of death as asphyxia, overcome by fumes of automobile engine in garage, was amended to read, “blow upon right temple of head.” Whether it was so appreciated at the time of the commencement of the action, the plaintiff evidently understood at the time of trial that in order to recover it was necessary for her to prove that the deceased came to his death by reason of external, violent, and accidental means. Her only evidence in support of this fact was the testimony of three witnesses, who claimed that they viewed the body of deceased during the afternoon of the day on which he died and that they observed “a reddish or pinkish red spot” on the side of his temple about the size of a twenty-five-cent piece. There was no evidence as to the cause of the spot. There was no evidence that he was struck by anything. There was no fact proven from which it could be inferred that he had sustained a blow on the temple. There was no fact or circumstance connected with the surroundings in which he was found to indicate that he could in any manner have been struck with any object on the side of his head.

It is suggested that the tube used for the inflation of the *178tires might have become engaged with the fan, causing the metal gauge on the end thereof to strike the deceased with violence. However, the tube gave no evidence of having come in contact with the fan, and it seems incredible that it could have become entangled therewith without resulting evidence thereof appearing upon the tube. Assuming nothing more than that there was a reddish spot upon his temple three or four hours after his death, Doctor Quinn testified that in his opinion death was due to the external signs of violence over the temple. The court held that this evidence was not sufficient to authorize or support a finding by the jury that the deceased came to his death by violent, external, or accidental means, and directed a verdict in favor of the defendant.

On this appeal plaintiff contends that the evidence above referred to is sufficient to take the case to the jury. If it be conceded that the spot on the temple evidenced external violence, there is nothing to indicate the severity of the blow which caused it. It is a matter of common knowledge that it requires a certain amount of force applied to the temple in order to cause death. There is an entire lack of evidence in this particular. Neither is there evidence of any postmortem conditions from which it may be judged whether he was struck on the temple, or of the force of a blow which he might have received on the temple. The skull was not fractured. There was no evidence of a hemorrhage of the brain, nothing at all except that he was dead and that this red spot was found upon his temple.

The only evidence, therefore, from which it may be inferred that external injury caused the death is the evidence of the doctor that a blow which caused the mark on his temple might have caused death, and that because he was dead it was his opinion that he died as the result of such a blow.' The opinion of the physician as to the cause of death is invoked to supply the substantive facts necessary to support his conclusion. This cannot be done: It is the func*179tion of opinion evidence to assist the jury in arriving at a correct conclusion upon a given state of facts. To endow opinion evidence with probative value it must be based on facts proven or assumed, sufficient to enable the expert to form an intelligent opinion. The opinion must be an intelligent and reasonable conclusion based on a given state of facts and be such as reason and experience have shown to be a probable resulting consequence of the facts proved. The basis of the conclusion cannot be deduced or inferred from the conclusion itself. In other words, the opinion of the expert does not constitute proof of the existence of the facts necessary to support the opinion. See Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518, where many cáses are reviewed.

Doctor Quinn may be credited with the expression of his honest opinion concerning the cause of the death of the deceased. His opinion in that respect, however, could be nothing more than mere intuition or conjecture. It had no probative force, because not based on facts which were necessary to give to it that degree of certainty required for the support of verdicts.

It follows that there was no evidence upon which the jury could have found that the death of the deceased was the resült of violent, external, and accidental means, and the verdict in favor of the defendant was properly'directed.

By the Court. — Judgment affirmed.-