258 Pa. 525 | Pa. | 1917
Opinion by
This suit was brought on an accident insurance policy by which the .defendant company agreed to pay the plaintiff $7,500 in case of the death of her husband “resulting from bodily injuries, effected directly .and independently of all other causes, through external, violent and accidental means.”
The plaintiff alleges in her statement that her husband, Ben Eby, died on April 13,1916, and that his death was caused solely by an accident within the terms of the policy; that about eight o’clock on the morning of that day, while he was brushing his teeth, a number of the bristles of the tooth brush which he was using became loosened from the brush and lodged in his throat, causing violent coughing, choking, vomiting and strangling, resulting in his death about noon of the same day. The defendant company, in its affidavits of defense, denies these averments, and alleges that the death of the assured resulted directly and exclusively, and independently of any accident, from organic lesions or disease, and not from an accident within the meaning of the policy.
It appears from the testimony of his wife that Eby was apparently in good health prior to the accident, and had not theretofore been in bad health; that about eight o’clock, on the morning of April 13th, he arose from his bed and went into the bathroom, was suddenly seized-with violent choking and strangling, became sick, and died about noon of that day. Under objection and exception, the plaintiff introduced testimony to prove the cause of his death, as laid in the statement.
Medical experts, including the attending physician, were called by the plaintiff,, and they testified that, in their opinion, Eby’s death was caused by cerebral hemorrhage, superinduced by coughing, strangling and vomiting. The physicians called by the defendant, among them being the physician who held the post mortem examination two months after the death, were
The learned trial judge, in an exceptionally clear charge, submitted to the jury to determine whether (a) Eby sustained internal injury from the bristles of the tooth brush which became unexpectedly detached and lodged in his throat, causing the choking and producing a hemorrhage which resulted in death; (b) if he did sustain an injury as alleged, it was effected through external, violent and accidental means, independently of all other causes, within the sense and meaning of the policy of insurance; and (c), if he was injured as claimed, that injury was the proximate cause of his death. The jury returned a verdict for the plaintiff, and, from the judgment entered thereon, the defendánt has appealed. The errors assigned are to certain hillings on testimony, to a paragraph in the charge referring to certain evidence admitted under objection, and refusal , of points for charge, all of which were requests for binding instructions for defendant.
The questions, involved, as stated by appellant, are: The admissibility of the testimony of the wife as to declarations of the deceased made fifteen minutes or more, after the happening of the alleged accident; the admissibility of statements as to the cause of illness .made by the deceased to the attending physician two hours after the accident; the admissibility of evidence offered by defendant in surrebuttal; and the refusal of binding instructions.
The appellant contends that the declarations made to the wife were not part of *the res gestse, as they had no causal connection with the accident, were too far removed, in point of time, from it, and, therefore, made after a break in the continuity of events which changed them, into the. narration of a past occurrence, they do not
In determining the first question, it is necessary to direct attention to Mrs. Eby’s testimony, showing the declarations of the deceased and the circumstances under which they were admitted, in connection with the ruling of the court. She testified that her husband was never sick; that he was well when they retired on the night of April 12th, and slept soundly all night; that she arose about half past seven on the morning of the 13th, her husband being then awake; that she dressed and went downstairs to prepare breakfast, and about half an hour later heard her husband get up and go to the bathroom, this being about eight o’clock; that she heard the water running and then heard him coughing- and strangling, and ran upstairs “and he was strangling; the water was running from his mouth. He tried to tell me to ’phone for the doctor but couldn’t.” He tried to talk; she took him back to the bathroom and gave him some listerine. “His face was black—black as a stove, and he was choking and strangling.” Being asked how long it was before he recovered his speech, she said, “about ten or fifteen minutes before he could speak to me.” On her being asked: “Then what did he say?” an objection was interposed, and plaintiff made an offer to prove all the acts and declarations of the insured from the time she heard him coughing up to the time of his death, as part of the res gestas. The trial judge ruled that, “it appearing from the testimony that the wife went to the bathroom upon hearing her husband coughing; that she found him unable to speak for ten or fifteen minutes because of his physical condition, but that he did speak immediately upon acquiring the power of speech; and it appearing that the whole act was one continuous act,..... the statements are to be treated as part of the res gestee and are admissible in evidence.” Mrs. Eby was then asked: “When your husband......recovered his power of speech, or was able to speak, what did he say to you?”
The ruling of the court admitting this evidence is challenged in the first assignment of error. We are of opinion that the declarations or statements made by the assured to his wife were part of the res gestee, and were, therefore, properly admitted in evidence. It will be observed that the assured had been in good health and was free from all ailments prior to the attack of severe coughing and strangling, which attracted the attention of his wife on the morning of the accident. The medical testimony offered by the plaintiff justified the finding that he had no organic trouble. Mrs.. Eby heard her husband go to the bathroom about eight o’clock, heard the running water, his coughing, and ran to his assistance, and found him choking and strangling. As soon as he could speak, in ten or fifteen minutes, these declarations or statements were made. They were, therefore,
The Supreme Court of the United States has considered the question in Travelers’ Insurance Co. of Chicago v. Mosley, 75 U. S. 397. That was a suit on an accident insurance policy brought by the beneficiary after the death of the assured which resulted from the accident. It appeared that the assured left his bed on the second floor of his residence in the nighttime, and, when he returned, he told his wife that he had fallen down the back stairs and almost killed himself, and that he had hit the back part of his head. Similar declarations were subsequently made to the son of the assured. The declarations were held to be a part of the res gestee and admitted, under objection, to prove that the assured had
The second question for consideration, and it is raised by the second assignment, is whether the court erred in admitting statements as to the cause of his illness made by the assured to the attending physician two hours after the accident. It is well settled that a physician may testify in favor of his patient to a statement by the latter in relation to his condition, symptoms, sensations and feelings made for the purpose of receiving medical advice. Such statements are in the nature of hearsay and, therefore, would be excluded under the general rule, but the courts admit them on the ground of necessity, as being incapable of proof by other evidence. While the competency of the evidence for such purpose is conceded,
It appears, therefore, that the court did not hold, as claimed by appellant, that the physician could testify to statements or declarations of his patient as to the cause of his injury, but distinctly ruled to the contrary, and in each instance when the question was raised properly confined the proof to statements of the condition, symptoms, sensations or feelings of the patient when the physician was called to treat him, which, as above pointed out, was clearly competent. It is quite true that the witness did go beyond the ruling of the court and testify that the assured told him his illness was caused by the lodgment of the tooth brush bristles in his throat, producing violent coughing and choking which, he feared, had ruptured something. No objection, however, was made by the appellant to the answer, nor was there a motion to strike it out, nor was the court asked to charge the jury to disregard it. So far as the record discloses, the appellant acquiesced in the reply. The court bad already repeatedly excluded such testimony, as being the narration of a past occurrence, and, therefore, not competent, and a motion promptly made to strike out that part of the witness’s answer would necessarily have prevailed. The objectionable answer was permitted to go unchallenged by the appellant, and, therefore, it remained in the case as part of the testimony: Broadnax v. Cheraw & Salisbury R. R. Co., 157 Pa. 140.
There is no merit in the seventh assignment, which alleges error by the court in refusing to permit Dr. Wads-worth to be called by defendant in surrebuttal. He performed the post mortem examination, and, being called by the defendant, testified in chief fully as to the condition in which he found the brain, and that it was in a normal condition. The plaintiff then called physi-. cians in-rebuttal, and they testifiedl to finding a disintegrated spot in the brain. It is, therefore, clear that the learned court below did not abuse its discretion in refus
The assignments of error are overruled, and the judgment is affirmed.