120 Va. 115 | Va. | 1916
delivered the opinion of the court.
This action was brought by Jenny W. Murray against the General Accident, Fire and Life Assurance Corporation, Limited, to recover the amount claimed to be due on a policy of accident insurance which had been issued to plaintiff’s husband, William L. Murray, by the defendant.
The defendant pleaded the general issue — non-assumpsit — to which the plaintiff replied generally; and also filed two special pleas, the substance of which was that the policy sued on was issued to the insured upon the faith and belief that certain statements made by him in a written application therefor and intended as warranties were true, but were by the assured knowingly falsely made, and that but for these false statements in his application for the policy, which were material, the policy sued on would not have been issued; upon which special pleas the plaintiff joined issue.
Evidence was introduced by both parties in support of their respective contentions, and thereupon the defendant demurred to the evidence, in which demurrer the plaintiff joined, and the court overruled the demurrer and entered final judgment in favor of the plaintiff against the defendant for the amount of the policy of insurance sued on, $4,500, with costs, to which judgment this writ of error was allowed.
On March 8, 1914, the assured, William L. Murray,, a resident of Norfolk city, Va., was taken sick with a very mild case of smallpox, the case being so mild that the at
It was the contention of the plaintiff at the trial that the death of the assured was the result of a bodily injury caused through accidental means, namely, the rubbing of his foot by his shoe; that through an abrasion of the skin caused in this way, the erysipelas germ entered his body,
The defendant, on the other hand, contended that the evidence was not sufficient to show that the assured came to his death by reason of bodily injuries effected through accidental means, and, further, that the policy of insurance was rendered void by reason of an alleged false and fraudulent answer made by the assured in his application for the policy.
The question whether or not the assured’s death was the result of “bodily injuries effected directly and independently of all other causes through accidental means,” involves two component inquiries, the first of which is, was the erysipelas of which the assured died caused by an accident, namely, the rubbing of- his foot by his shoe? In other words, the assured having died, as is not controverted, of erysipelas, how was this erysipelas, the beginning of his death, caused?
We have stated in a general way the facts which the evidence proved, or tended to prove, as to assured’s stay at Craney island, the detention station for smallpox cases, his condition at the time he was sent to his home, where he died about two weeks later, etc., and we will now review more in detail the evidence relied on by the'plaintiff to sustain her contention that the erysipelas, of which the assured died, was caused by the rubbing of his foot by his shoe. This evidence is given by the witness, Barr, who was, as stated, occupying the same room with the assured at that time, and the plaintiff testifying on her own behalf.
The substance of the testimony given by Barr as to what he saw on the evening it is claimed that assured’s foot was.rubbed by his shoe, is: “He was walking around the room, and healing rapidly, and was wearing slippers like
The witness was then asked as to when Dr. Sleet first saw assured’s leg after it became infected, and if he remembered what Dr. Sleet did, to which witness replied: “He looked at it and said it was caused by the infection of the shoe.” Dr. Sleet was questioned with regard to this, and while he did not deny it, said that he did not remember, but did state positively that he saw “the point of infection,” and that it was “between his ankle and heel,” not above the ankle bone. The witness Barr had stated that the small rubbed place he saw was “just a fraction above his (assured’s) ankle bone, a reddish place.”
Plaintiff testified that when the assured went to Craney island he carried with him a pair of tan shoes which he had owned about two weeks or ten days before he left, and that when he came back from Craney island his temperature was 104; that his right limb was swollen up to his knee and the next morning she found a place on the side of his foot the size of the end of her finger which looked
“Q. Did you have occasion to examine Mr. Murray’s foot and leg after he came back from Craney island? A. Not that night. I did the following morning after the doctor came and was dressing it, and the nurse and I found a place on the side of his foot.
“Q. What size place? A. It was the size of the end of the finger and looked rubbed, and was crinkled and rough like your finger would be when-in water.
“Q. Which foot? A. The right foot between the heel and the ankle bone on the inside of the foot.
“Q. What kind of shoes did Mr. Murray take with him to Craney island? A. A pair of new tan shoes, that he had about two weeks, the first pair that he had had for several years.
“Q. Had he worn these much before he went to Craney island? A. No, they were new; just two weeks or ten days before he left.”
It is to be observed that the witness, Barr, says he saw a place above the ankle of the assured which looked like it had been rubbed, which was twenty-four hours after the assured’s walk in the high shoes, but neither he nor the plaintiff, Mrs. Murray, undertake to say that it was rubbed by the shoe, or how rubbed. Dr. Payne, the attending physician after, as well as before, the return of the assured from Craney island to his home, and who was put on the witness stand by the plaintiff, did not see this rubbed place located by the witness, Barr, above the ankle joint, but by the plaintiff, Mrs. Murray, between the ankle joint and the heel, nor did any other witness see it. But whether the rubbed place — “a reddish place” — which Barr saw and located as “just a fraction above the ankle bone,” was the same “rubbed, crinkled and rough looking place like one’s
The medical or expert testimony in the case, which is practically not controverted, shows that erysipelas is a disease caused by the entrance of a germ through an abrasion or some break of the skin; that it is necessary for there to be an abrasion or break in the skin in order for this germ to enter, and that the disease is not caused by
“Q. Now, doctor, until the (smallpox) sores are entirely healed, there are abrasions in the skin, are there not? A. Yes, sir.
“Q. Through which erysipelas may enter? A. Yes, sir.
“Q. You did not observe any particular point of infection when you first examined Mr. Murray, did you? A. I saw the point of infection, yes, sir.
“Q. Where was it ? ' A. Between his ankle and heel.
“Q. (By the court) You mean by that the germ had gotten in there? A. Between the ankle and the heel; yes, sir.
“Q. When you found — after you discovered Mr. Murray was suffering from erysipelas, had the body been cleared of the smallpox? A. It had not.
“Q. At that time the sores were still there. A. Yes, sir.
“Q. And there were weak places in the skin? A. The scabs had not come off in a good many places when he was taken sick.
Dr. Schenck, the health commissioner of the city of Norfolk, who had charge of the smallpox cases occurring at the time that the assured, Murray, had it, testified as follows:
Q. “What are amongst Vae sequelae of smallpox? A. Abscesses, carbuncles, different kinds of infection, erysipelas and inflammation. The various types of which are recognized by all authorities as being quite apt to follow smallpox. Smallpox is an aseptic disease and exposed to all aseptic.”
The witness further testified on cross-examined that according to all the authorities it was necessary that there should be an abrasion, an opening of some kind in the skin, for erysipelas to enter; that even if the germs were to enter through one of the smallpox pustules, there would have to be some sort of rubbing of that part, any opening in the skin, or any part of the cutaneous tissue would govern.
“Q. If a scab had formed over the pustule it would be necessary for the scab to be rubbed off? A. My opinion, I would not think it would enter the ordinary scab over a sore. It would have the scab cover against the infection.
“Q. (By the court) You say the germ could be protected by the scab ? A. It could get under it. I don’t say the scab entirely seals it.
“Q. There would be an opening in the scab for it to get in? A. There must be; yes, sir.”
Upon further cross-examination the witness stated that to some extent the scab on a smallpox pustule acted as a protection; that there would be nothing unusual for a germ to enter a rubbed place on the ankle caused by the rubbing of a shoe, and that he had known of it in his own experience.
A book written by Dr. Osier, a recognized authority, was introduced by plaintiff, and in it, speaking of smallpox cases, this language appears: “Erysipelas is not common. When it does occur it comes on in the third week of the disease. Considering the number of streptococci which are present in the lesions, and the opportunity of infection, it is surprising that this infection is not more frequent.” That learned author also says: “Convalescence should not be considered established until the skin is perfectly smooth and clean, and free from any trace of scabs,” which statement coincides with the view testified to by Dr. Sleet in this case, who said: “I don’t consider smallpox clean until clear of sores.”
Writings by Dr. John MacCombe, of Southeastern Smallpox Hospital, were read from as evidence in the case, and that learned authority says: “Erysipelas is not infrequent; it comes on during the scabbing stage or later, is apt to spread, and is accompanied by fever. When extensive, the constitutional symptoms may be severe, and the patient, if weakened by a severe attack of smallpox may succumb.”
Other recognized medical authorities were read from in the introduction of the evidence in the case, all of which bear out the theory that amongst the sequelae of smallpox is erysipelas, which is not infrequent, and the patient is not free from danger “until the skin of the patient is perfectly smooth and clean, and free from any trace of scabs,” as Dr. Osier expresses it, or as Dr. Sleet states, “clear of sores.”
In this case when Murray, the assured, was found to be suffering from erysipelas, his body had not been cleared of the smallpox; there were sores still there, as well as weak places in the skin, and there were open places that
The medical evidence given in the case is, as we have seen, uncontroverted, and shows that erysipelas is a disease caused by the entrance of an infection through some break or abrasion of the skin, and further that this particular germ frequently enters the body as a sequelae of smallpox, which consists of small pustules or sores on the body penetrating the skin and that these sores when “cleaned off” leave a “reddish” spot in the skin.
The learned counsel for the plaintiff earnestly and forcefully argues — citing numerous authorities to support the contention — that the evidence was sufficient to have warranted the jury in finding that the infection causing the erysipelas in the assuered’s leg, resulting in his death, entered through a rubbing or an a'orasion caused by his shoe, and therefore this court must so find. Without doubt the proof of an accident may be circumstantial, but the circumstances proved must point directly to the main fact in issue and not be such as to lead merely into a labyrinth of surmises and conjectures. The finding of the jury or of the court cannot be based upon conjecture, guess or random judgment, rather than upon reliable or established facts shown in the evidence.
It is true that contracts of insurance are to be construed most strongly against the insurer and in favor of the assured, but, both upon reason and authority, the right to recover upon the policy sued on must be established by a preponderance of the evidence adduced in the case, and not be based merely upon conjecture, guess or random judgment, that is, upon mere supposition without a single known fact.
In order for the plaintiff to recover in this action, the burden is upon her to bring herself within the provisions of the contract of insurance by proving an accidental injury to the assured, and there is no presumption to aid her in this proof, since the well-established rule of law, according to all the authorities, is, that when death occurs it is to be presumed to be the result of natural dissolution rather than of accidental injury.
The proof of the alleged accident in the case of Carnes v. Iowa Travelling Men’s Asso., 106 Iowa 281, 76 N. W. 683, 68 Am. St. Rep. 306, was quite similar in character
Plaintiff in this case necessarily has to rest her right to a recovery upon the evidence given by herself and her witness, Barr, who occupied with the assured the same room at the Craney island detention station. An analysis of Barr’s testimony shows that while the assured, Murray, put on the tan shoes one afternoon and walked out, returning about four or five o’clock, he made no complaint until about bed time, and then only said his foot hurt him by smarting, but Barr does not pretend to say why assured’s foot was smarting nor offer any explanation of this remark by the assured. Nor did he examine assured’s foot
Of the cases cited in support of plaintiff’s contention that the evidence in the case is sufficient to have warranted the jury in finding that the rubbing of the foot by his shoe was the cause, independent of all other causes, of assured’s death, the case of Caldwell v. Iowa, State, &c. Asso. 156 Iowa 327, 136 N. W. 678, is, perhaps, more in point here,
“In an action on an accident insurance policy, evidence of the existence of a slight wound upon the cheek was sufficient to support a finding that the wound was violent and a external; and that the burden was on the plaintiff to show, not only the death of the insured, but also that it was caused by violent, accidental and external means.”
The case here is very different in that there is no evidence, as we view it, to support the theory of the plaintiff, that assured, Murray’s, foot had been rubbed by a tight shoe, causing an abrasion of the skin through which the erysipelas germ entered and caused his death. As we have seen, no one testifies in the case that assured ever had a tight shoe, or that a shoe, tight or otherwise, rubbed his foot. Instead of showing that the shoe it is claimed rubbed his foot was the “new high tight shoe” graphically described in the argument of counsel for plaintiff, it is testified by the plaintiff herself that the shoes in question had been owned by assured for two weeks prior to his going to the detention hospital on Craney island, and been worn some by him, and were taken by him to the island when he was sent there. Not only so, but the proof for plaintiff is that when the erysipelas germ entered assured’s foot at a point
Juries, as well as courts of law, are called upon to adjudge cases on facts and reasonable inferences from those facts, not upon surmise and conjecture as to what are the facts in a particular case. As we view the evidence in this case, upon the defendant’s demurrer thereto, it is wholly insufficient to establish with reasonable certainty the fact, essential to plaintiff’s right to recover, namely, that the assured sustained an injury by the rubbing of his foot by a shoe through which the germ of erysipelas entered and caused his death; and, therefore, such a finding by the jury would necessarily have been based solely upon conjecture, guess, or random judgment, rather than upon any reliable or established facts appearing in the case. This view of the case renders it unnecessary to consider other assignments of error.
It follows that we are of opinion that the trial court erred in overruling defendant’s demurrer to the evidence, and its judgment will be reversed and judgment entered by this court for the defendant.
Reversed.