102 P. 586 | Mont. | 1909
delivered the opinion of the court.
For a statement of the facts in this case, see McAuley v. Casualty Co., 37 Mont. 256, 96 Pac. 131. The case is again in this court on defendant’s appeal from a judgment entered against it, on verdict of a jury, and from an order denying its motion for a new trial.
The clauses of the contract which are invoked by the plaintiff to fix a liability on the defendant, read as follows: “(A) In ease the assured [Jno. McAuley] shall, during the term of this insurance, sustain bodily injuries effected solely through ex
It was assumed by counsel for defendant upon the first appeal, and not controverted by the plaintiff, that, in order to recover for the death of Annie McAuley by virtue of clause F, it was necessary for the plaintiff to show that the death was eaused from bodily injuries which, independently of all other causes, resulted in such loss of life. This court proceeded upon the theory that such interpretation of the contract was the correct one, as is disclosed by the opinion subsequently rendered. Upon the second trial counsel for the respondent contended for a different construction, and the trial court, being of the opinion that the contract would not bear the interpretation originally placed upon it by defendant, refused to instruct the jury, as
But it is contended by the appellant that (1) the plaintiff at the first trial adopted the theory that the contract provided that the injury to Mrs. McAuley must have produced her death independently of all other causes; and (2) that this court placed that construction upon the contract in deciding the first appeal. We have searched the record on the former appeal for any evidence that the plaintiff committed himself to, or contended for, such construction; and, so far as this court is concerned, it is enough to say that the point was not raised or considered. Counsel for the respondent, who argued the case at the hearing of this appeal, frankly stated that he probably misled the court at the time the first appeal was argued, by not raising the question, for the reason that he had not at that time discovered that the defendant had placed an erroneous construction upon the
Appellant earnestly contends that there is no evidence in the case which would warrant the jury’s finding that the death of Mrs. McAuley resulted from injuries received while riding as a passenger on the street-car. It is asserted that in this regard the present case is the same as that made at the first trial, and the language of the court in the original opinion is relied on. But counsel have failed to consider, or at least they have not quoted in their brief, the entire passage on the subject. The court said: “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.” Not for the purpose of deciding this appeal, but for our own information, we have examined some of the older medical works on the subject of the disease, erysipelas. We find it there stated that some persons are susceptible to erysipelas. It is often stated by laymen that an individual is “subject” to erysipelas. We know of persons who have suffered from the disease many times, and in whom it is said to “break out” at certain seasons. The record discloses that, at the first trial, Dr. McDonald testified: “It [erysipelas] most frequently enters the system through an avenue of abrasion; through the surface. It frequently appears where there is no abrasion at all.” In this state of the record the court was clearly justified in concluding that a person could become ill from erysipelas in some manner other than by inoculation from an outside germ, through an abrasion of the skin. And the difference is vital, for the reason that the jury would not be justified in guessing whether the death resulted from a disease introduced into her system through the hurt to her leg at or about the time she was injured by the street-car, or whether she died from a disease which she already had, but which first manifested itself at the time of the injury,
But it is contended by the appellant that this is not sufficient to fix a liability upon it under its contract, for the reason, as they suggest, that the disease germs may have been communicated to the hurt, not at the time of the accident, but from the hands of her husband, or from the bandages or liniment which were immediately thereafter used and applied. But we are of opinion that this contention of the appellant cannot be sustained. These contracts of insurance, like all others, must be construed with a view to carrying out the intention of the parties. (Revised Codes, sec. 5025: Richards on Insurance Law, secs. 384 et seq.) The manifest intention of these parties was that, if Mrs. McAuley was injured while riding as a passenger on a street-ear, plaintiff should be indemnified, to a certain extent, for his loss. That the disease germs were communicated to Mrs. McAuley’s leg from the hands of her husband, or from the bandages or liniment, is mere conjecture; there is no word of testimony on the subject. The jury found that she injured her leg at the time and place in question, and the proof shows that erysipelas manifested itself within the usual time. If a man not learned in the medical profession—one of the neighbors, for instance—were asked what caused Mrs. McAuley’s death, he would undoubtedly reply that she scratched her leg getting off a street-car, and that blood poisoning set in, from
It is suggested by the appellant that there is no evidence that Mrs. McAuley was a passenger on the car. It is true that no one testified directly that she was; but the testimony shows that the car stopped at her home, and she alighted. There is no evidence that the car stopped for any other purpose, and we do not think that the jury would have been justified in arriving at any conclusion other than the one embodied in their verdict for the plaintiff. They were charged by the court that she must have been a passenger in order to warrant a verdict in plaintiff’s favor.
The next contention is that the evidence is insufficient to justify a finding that proof of death was furnished within two months. Mrs. McAuley died on October 24, 1906. On November 27 following the .plaintiff mailed the proofs of death to the defendant company at its home office in New York. The letter was registered. The presumption is that it was received in due course of mail, and, indeed, a letter dated December 7,
This action was commenced on April 24, 1907; on October 23, 1907, at the trial, plaintiff was, over defendant’s objection, allowed to amend his complaint by alleging that “he had duly performed each and all of the obligations in said contract on him binding.” Defendant then objected to the introduction of any testimony in support of the allegations of the complaint, for the reason “that at all times prior to the amendment the complaint did not state facts sufficient to constitute a cause of action, and that on October 23, 1907, the complaint for the first time stated a cause of action; that the amendment could not relate back to the original date at which the complaint was filed or said cause commenced, so as to arrest the running of the six months provided in the policy sued upon, within which said action must be commenced, and for the further reason that the amendment varied the alleged cause of action set forth in the complaint, and that the amendment, so allowed over the objection of the defendant, was a material alteration, and its omission from the original complaint is fatal.” The amendment was, we think, properly allowed, and the other point was decided adversely to the appellant’s contention in Clark v. Oregon Short Line R. Co., 38 Mont. 177, 99 Pac. 298.
The following extract from the record will illustrate the appellant’s next assignment of error: Plaintiff, testifying, said: “I saw that she got hurt getting off, and went and met her, and helped her get into the house, and she told me what happened. I see it happened myself.” The witness was then allowed to-state, over the objection of defendant’s counsel, that when he met his wife, not over one-half minute after she alighted from the car, she told him that “she got hurt on the leg getting off the street-ear on the step.” It is now insisted that this testimony was hearsay; that the statement of Mrs. McAuley was. no part of the res gestae, and the admission of the evidence was prejudicial error. We cannot so hold. It is unnecessary to-decide whether or not the statement was a part of the res gestae,
Another contention of the appellant is that a hypothetical question, propounded to Dr. Allen by counsel for the plaintiff, did not embody all of the testimony on the subject to which it related, and was therefore incompetent. This assignment of error is disposed of by the decision of this court in the ease of State v. Crowe, ante, p. 174, 102 Pac. 579. The question propounded comprehended this inquiry: “If the woman died from erysipelas, what relation, in your opinion as a physician and surgeon, did the scratch or abrasion have to the woman’s death?” This portion of the question was particularly objected to, for the assigned reason that it called for.the ultimate conclusion, which was exclusively for the jury to draw. The witness answered: “It served as a point of entrance inti the system of the germ of erysipelas.” We find no error in this ruling. There can be no question, from the testimony, that Mrs. McAuley suffered an abrasion of the skin of her leg; that erysipelas first showed itself at that point, and the abrasion became the center Of the outward manifestations of the disease. As heretofore stated, the doctors all testified, in effect, that the germs of erysipelas could not “slumber in the blood,” and Dr. Freund testified, on this same subject: “If there is an abrasion, and there is erysipelas, it is presumably the location and the entrance”—and plaintiff testified that there was no other abrasion on his wife’s body. We think, under the circumstances, and in view of what was said by this court upon the former appeal, together with the evident necessity for expert testimony on the subject, that the question was a proper one.
Affirmed.
