187 Iowa 869 | Iowa | 1919
John G. Martin died on or about March 2, 1918. It is claimed that his death was caused by accidental means. The only question presented here is whether or not he came to his death by accidental means.
The plaintiff, in her petition, states her claim in the following language:
“The death of decedent was accidentally caused by reason of certain food taken by the decedent into his stomach while absent from home, which food was accidentally, and without the knowledge of the decedent, of an unwholesome and dangerous character, whereby, without intent on decedent’s part, or on the part of the person serving the same, said food accidentally caused decedent’s stomach and bowels and the contents thereof to become fermented, and caused a violent fermentation and infection of decedent’s bowels, whereby a violent retching of the stomach and bowels ensued, and a foul and dangerous condition of the bowels was
The defendant admits that the death of the insured was caused by reason of food eaten by him, and fermentation in his stomach from some cause unknown, but denies that the death was from accidental means.
A jury was impaneled to try the cause. At the conclusion of the evidence, the court directed a verdict for the defendant, and plaintiff appeals.
If all the evidence offered and rejected, taken with all the evidence received, does not make a case for the jury, it would be idle to reverse the case for error committed in refusing it. This is certain: that, if admitted, it would not have entitled the plaintiff to the relief prayed for; so, in the determination of this case, we will take all the evidence now in the record before us, that which was rejected by the court as well as that received by the court, and determine therefrom whether or not the insured came to his death by accidental means, or rather, whether the showing upon this point is such that the jury could have so found, after carefully and honestly and intelligently considering the same.
For a definition of accident and accidental death approved by this court, see Carnes v. Iowa St. T. M. Assn., 106 Iowa 281, 285; and Hanley v. Fidelity & Cas. Co., 180 Iowa 805, 823, and pages following, and cases therein cited.
This brings us to a consideration of the evidence before us.
The deceased, on the day when it is claimed the accident occurred which produced his death, was in the employ of one Zaun & Zaun, merchants in the city of Des Moines. About 10 o’clock on the morning of the 1st of March, 1918, he was engaged in sorting oranges, separating those which were marketable from those which were not marketable. He ate three oranges, just prior to that time. Whether
“I didn’t find anything else that would account for the trouble in the bowels, except the undigested orange. I think that he had acute infection from food he had taken in the shape of oranges, and I think that was the probable
He was asked this question, on cross-examination:
“You can’t tell what caused the indigestion, can you? A. From the condition we found there, we think we know what caused' it, when we found the orange in the stool. I thought it was from eating the orange. Q. If the orange were perfectly good, the stomach might be in such condition that he. could not digest it? A. Yes. Q. From natural conditions, that is true, isn’t it? A. It is true. It is true of all food: that you may take perfectly wholesome food, and, on account of the condition of the stomach, not digest it. That is true. Q. Do you know anything about the reason why these oranges did not digest ? A. No, sir. I don’t think anybody could tell what kept these oranges from digesting. Q. When food is taken into the stomach and fails to digest, it does ferment, doesn’t it? A. As a rule, it does. If you don’t get digestion, you get fermentation, to a certain extent. You might get undigested food and all that in the bowel, but you ought not to get the odor, the terribly
He was asked this question, on recross-examination:
“A perfectly healthy man who ate wholesome food might have gastritis? A. Yes, sir. Cholera morbus from eating apples is a very frequent occurrence, and this is what this man had, in a general way.”
Redirect examination: “You don’t frequently And cholera .morbus from eating perfectly wholesome and ripe apples, not infected in any way? A. If they were per
The jury could find, therefore, from this record that some of the oranges from which deceased selected the oranges that he ate were spotted and specked, had green spots, and that some of the oranges tasted bitter. Whether plaintiff selected for his own consumption the spotted and specked oranges, does not appear. It does appear, however, from his own statements that the oranges that he ate were not bitter, as were the oranges given his brother-in-law; for the brother-in-law testifies that, in the evening, he told deceased that he hadn’t eaten the oranges that were handed him; that he threw them away, because he found them bitter to the taste. The deceased replied that the oranges that he ate tasted all right. The record presents this situation: The deceased had before him, when he selected the three oranges which he ate, a quantity of oranges, some of which were specked and spotted, and some of which tasted bitter. He selected from the quantity of oranges before him three, and ate them. His selection was made with knowledge of the fact that some of the oranges were marketable and some of them were not; that some had green spots and specks, and some had not. There was nothing accidental about the selection. It was open to him to make choice from the oranges before him, and he made his selection with the knowledge of the then condition of the oranges. His choice between the good and the affected oranges was voluntary. If he chose the good oranges and ate them, and they failed to digest, and gastritis resulted, it cannot be said that the means which caused acute gastritis were accidental. If he voluntarily chose to eat affected oranges, and they failed to digest, it cannot be said that the means that caused the gastritis were accidental. The consequences that followed the eating might not have been anticipated or intentional, but the thing done was inten
As said before,- the -defendant died from gastritis, which is caused by the failure of food to properly digest in the stomach. To come within the policy, the injury to the stomach must be traceable to means which were purely accidental, and the disease must be a result of a direct injury to the organ affected- thereby, through accidental means. If we were to hold in this case that the plaintiff could recover, then, under a policy containing provisions such as this policy contains, it would follow that, whenever anyone ate food that disagreed with him, or which failed to properly digest, and acute indigestion followed, his beneficiary would be entitled to re’cover the amount of premium provided in the certificate. This case is clearly distinguishable from those cases in which the company was held liable where one ate food containing ptomaine poison, without knowledge of the fact that it contained ptomaine poison, and -death resulted, not from the failure of the food to digest, but from the effect of the poison.
Upon the whole record, we feel that the plaintiff has shown no ground for recovery, and the judgment of the district court must be, and is, — Affirmed.