54 Neb. 250 | Neb. | 1898
This action was brought in the district court of Lancaster county by Celia Y. Shryock to recover the amount of insurance existing in her favor by the terms of a certificate of membership issued to her husband whereby his life was insured against death by accident within ninety days. There was a verdict and judgment as prayed, and for the reversal of this judgment the association prosecutes this proceeding in error.
In the petition it was alleged that May 6, 1892, in consideration of $3 as a membership fee paid by William B. Shryock for plaintiff, and of such future payments as might be required under defendant’s articles of incorporation, the defendant had made and delivered to said William B. Shryock its policy and certificate of insurance on the life of said William B. Shryock, in the sum of $3,000, and that plaintiff was the wife of William B. Shryock and was the beneficiary in said policy. It was further averred that on or about July 2, 1892, while said policy was in full force, said William B. Shryock received a personal injury in the city of Omaha, from which injury, shortly thereafter, the death of said William B. Shryock resulted. It was further alleged that due proof of the death of William B. Shryock had beep made, but
“1. Did William B. Shryock, on or about the 2d day of July, 1892, meet with an accident in the city of Omaha, Nebraska, whereby he received external and violent bodily injury? Answer: Yes.
“2. Did William B. Shryock, prior to and at the time of his death, have faity degeneration of the heart? Answer: Yes.
“3. If you answer that William B. Shryock received an accidental, external, and violent bodily injury, did that injury alone cause his death? Answer: Yes.
“4. If you answer that William B. Shryoclc, prior to and at the time of his death, had fatty degeneration of the heart, did that disease alone cause his death? Answer: No.
“5. What was the cause of the death of William B. Shryock? Answer: By violent bodily injury, he at the time having fatty degeneration of the heart.”
There was some conflict in the evidence, but as the jury accepted as true that which tended to sustain the -theory of plaintiff, it is unnecessary to consider any other in determining -whether or not there was sufficient to sustain the special findings above quoted. James M. Robinson was a witness for the defendant in the district court and testified that on July 1 or 2, 1892, he met
Q. Now, did he say anything to you up to that time about slipping and hurting his leg?
A. Yes, sir. He told me several times that his fool-had slipped and he had hurt his knee.
Q. He told you several times during the two hours you were with him?
A. Yes, sir.
Q. What did you say he said about that?
A. He said his foot had slipped and that he had wrenched his knee and that it was hurting him.
Q. What knee was that?
A. I think it was the left knee, I am not sure, but it was the same knee he had hurt before.
Q. The same knee that was broken before?
A. Yes, sir.
Q. What did he say at that time about having recently removed the splints or bandages that the doctor had on the knee?
A. He said he had been wearing a bandage or a brace or something and that he had taken it off lately, or something to that effect. I don’t know how recently he had taken it off.
William Darst, a witness for the plaintiff, testified that he saw William B. Shryock at the store of witness in Omaha about 8 o’clock in the evening of July 1, 1892; that Shryock looked to witness like a man about to faint, was pale and trembling, and complained that he had hurt himself; that in coming up from the depot he had slipped and partially fallen and that it pained him terribly right over his right hip. He kept his hand rubbing his side and acted as if he was sick in his stomach. He was spitting as if he was sick in his stomach. He remained over two hours from the time he came in. Usually witness closed up at 9 o’clock at night,, but his reason for not closing at that time, July 1, 1892, was given thus in his
It seems to us that the special findings were in all respects supported by the testimony just quoted. There was no attempt to show that Mr. Shryoek might not have been ignorant of any abnormal condition of that vital organ. There was, therefore, no fraudulent or willfully false representation as to the existence of such conditions as would have led to the rejection of the application for insurance had their existence been known to the company. In the membership certificate it was recited that it was issued in consideration of the warranties in the application as well as in consideration of the payment of the premium. In his application Mr. Shryoek said: “I never had or am I subject to fits, disorders of the brain, or any bodily infirmity.” With reference to payment in case of death the provision of the policy was as follows: “And the said association agrees to pay to Delia Y. Shryoek, wife, if living, * * * the sum of $3,000 if the death of the certificate holder shall result from such
The opinion in Travelers Ins. Co. v. Melick, supra, was written by Sanborn, J., and in it were recited the following conditions of the policy sued on, to-wit: “This insurance does not cover disappearances nor suicide; sane or insane; * * * nor accident, nor death * * * resulting wholly or partially * * * from * * - disease or bodily infirmity, hernia, fits, vertigo, sleepwalking * *. intentional injuries (inflicted by the insured or any other person).” The action of Melick, tin administrator, was brought on the policy and in the petition it was alleged that the death of the intestate, Dr. Robbins, was caused by an accidental gun-shot wound in the foot. The answer denied this allegation and alleged that death was caused by the intentional self-inflicted injury of Dr. Robbins in cutting his Own throat with a scalpel. We quote from the opinion this language: “There was evidence that the doctor accidentally sent a bullet through the fleshy portion of his foot, June 1, 1890; that the wound thus caused became very painful, confined him to his bed, caused a fever and gradually reduced his strength, until he died, June 18, 1890; that this gun-shot wound was just such an injury as would naturally produce tetanus or lockjaw; that the doctor and his physicians feared that disease from the first, and, that they used chloral and chloroform to relieve the pain and ward off this disease; that in the early morning of June 18, 1890, while the deceased was alone in his room, he Avas seized with tetanus; that this disease causes the most excruciating pains that human beings ever suffer; that it
The case cited next in National Masonic Accident Ass’n v. Shryock, supra, was United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, in which the association sought the reversal of a judgment 'which had been rendered against it. On the trial in the lower court there had been embodied in an instruction the following language: “If, for example, the deceased sustained injury to an internal organ and that necessarily produced inflammation, and that produced a disordered condition of the injured part, whereby other organs of the body could not perform their natural and usual functions, and in consequence the injured person died, the death could be properly attributed to the original injury. In other Avoids, if these results followed the injury as its necessary consequence, and would not have taken place had it not been for the injury, then I think the injury could be said to be the proximate or sole cause of death; but if an independent disease or disorder supervened upon the injury, if there was an injury, — I mean a disease or derangement of the parts not necessarily produced by the injury, — or if the alleged injury merely brought into activity a then existing, but dormant, disorder or disease, and the death of the deceased resulted wholly or in part from such disease, then it could not be said that the injury was the sole or proximate cause of the death.” We have found no language other than that above quoted which tends to sustain the proposition in support of which it was cited. This was so very favorable to the plaintiff in error, however, that by that party it was not presented for consideration and consequently was neither approved nor disapproved in the appellate court. What was decided is fully stated in the syllabus, which was in this language: “A certificate or policy issued by a mutual accident association stated that it accepted B. as a member
In Freeman v. Mercantile Mutual Accident Ass’n, supra, the insured, who died of peritonitis localized in the region of the liver and induced by a fall, had previously had peritonitis in the same part, and the previous disease had produced effects which rendered him liable to a recurrence of it. In an action upon the policy by the widow of the insured the judge charged the jury that upon the question whether peritonitis, if that caused his death, was to be deemed a disease and the proximate cause of death within the meaning of the policy, depended the question whether or not, before and at the time of the fall, he was suffering with the disease. If
The case of Anderson v. Scottish Accident Ins. Co., supra, was one in which a suit had been brought upon a policy which provided that, to recover under it, an accident must be the direct cause of death, and that within three months, and that the company would not be liable for death arising from natural disease although accelerated by accident, Upon appeal it was held that it had not been proved that the accident, had caused the death at all, and the court expressly reserved its opinion as to acceleration.
In Smith v. Accident Ins. Co., supra, the suit was on a policy against certain accidents, in which there was an express provision that the company did not insure against erysipelas or any other disease or secondary cause or causes arising within the system of the insured before, or at the time of, or following such accidental injury (whether causing such death directly or jointly with such accidental injury). The insured, on Saturday, accidentally cut his foot against the side of an earthenware pan. On the following Thursday erysipelas was caused by the wound, and but for the wound he would not. have suffered from it'. It was held by a majority of the court that the insurer was protected by the condition, and was not liable. In the discussion of this case great stress was laid on the proposition that the policy expressly excused the company from liability oh account of erysipelas which might supervene as a result of an accident.
The syllabus in Marble v. City of Worcester, supra, correctly reflects all that was involved and decided in that case. It was as follows: “If a horse drawing a vehicle, though driven with due care, becomes frightened and excited by reason of the striking of the vehicle against a defect in the highway, frees himself from the control of the driver, turns, and, at the distance of fifty rods from the defect knocks down a person on foot in the highway, who is using reasonable care, the city^or town bound to keep the highway in repair are not responsible for the injury so occasioned, though no other cause intervene between the defect and the injury. Thomas, J., dissenting.”
In National Benefit Ass’n v. Grauman, supra, the applicability of the easels indicated by the following paragraph of the syllabus: “Where the risk is limited to a case of death proximately caused by physical injuries of which there shall be some visible extérnal sign, the complaint must make such a case; but the fact that the injury produced apoplexy does not render it any less the cause of death.”
This completes a review of all the cases cited in support of the second paragraph of the syllabus in National Masonic Accident Ass’n v. Shryock, supra, and it has failed
There was some contention that the statements of Mr. Shryock made a few hours afterwards as to the cause of the injury to him were not a paid of the res gestoe, and, therefore, should not have been admitted in evidence. We have already quoted from the testimony of Mr. Robinson, a witness for the defendant in the district court, and a reference to this quotation will show that this witness, in response to interrogatories propounded by the defendant, repeated these statements' of Mr. Shryock, consequently we cannot say that it was prejudicial error to permit the reiteration of these same statements by witnesses examined on behalf of plaintiff.
It was insisted that there should have been a demand
It is urged that the court erred in refusing to permit the introduction of the written testimony of Dr. Leonhardt given on a former trial. As this proposed testimony was not embodied in the bill of exceptions, it cannot be assumed that its rejection operated to the prejudice of the association.
It is not considered necessary to state at length the evidence in relation to an alleged oral instruction to the jury. After a prolonged deliberation the jury was brought into the court room that it might be ascertained whether any assistance could properly be rendered toward bringing about an agreement upon a verdict, and the court, on finding this to be impossible, sent the jury back to its deliberation, requesting, however, that if possible the members should try to come to an agreement. No sufficient reason for concluding that this was prejudicial has been advanced and we can conceive of none.
Affirmed.