No. 2,526 | Mont. | Jun 1, 1908
delivered the opinion of the court.
Appellant contends that the court below erred in allowing plaintiff to testify as to what his wife said about having been hurt in getting off the car, and also that the respondent failed to show that he had made proof of the death of his wife as provided by the terms of the contract of insurance. We do not find it necessary to decide these questions, however, because in our judgment there is a fundamental defect in the ease presented by the plaintiff that prevents his recovery.
The motion for a nonsuit should have been sustained. The plaintiff failed to prove the cause of the death of his wife. His contract with the defendant provided that the company should become liable only in the event that injuries, effected solely through external, violent and accidental means, should, directly and independently of all other causes, result in loss of life. In order to recover the plaintiff was bound to prove that, the death of his wife was caused by such an injury. This he failed to do. The only positive testimony produced by him was to the effect that the cause of the death of Mrs. McAuley was erysipelas. Whether the disease was introduced into her system through the scratch she received, or whether its baneful properties slumbered in her blood prior to that time, whether it was communicated to her body from her clothing or a bandage, or from some projecting portion of the car, we do not know, the doctors did not know, and the jury could not know. As actions like this are founded upon express contract, it is incumbent upon -the plaintiff to prove, by some substantive testimony, that the event has occurred, upon the happening of which
Several authorities are cited by the respondent to the effect that where death results from blood poisoning, following as a natural, but not the necessary, consequence of a wound, however slight, as from the prick of a pin or a lead pencil, the wound will, in insurance cases like the one at bar, be deemed the proximate cause of death. In this case, however, there was no testimony, not even a medical opinion, that the erysipelas was caused or-aggravated by the wound on Mrs. McAuley’s leg; that is to say, there is no testimony to the effect that the erysipelas germ was communicated to the deceased through the abrasion on her leg, nor is there any evidence that the abrasion caused the disease to become manifest. For aught we know the erysipelas was entirely independent of the abrasion, and the result would have been the same had no abrasion of the sldn existed. The failure to caff a physician until the patient was almost dead probably destroyed all chance of making this proof.
The judgment and order appealed from are reversed, and the cause remanded for a new trial.
Reversed and remanded.