96 Neb. 65 | Neb. | 1914
The defendant, a fraternal accident association insuring: the lives of its members against death by accidental means and for accidental injuries, appeals from a judgment of the district court for Douglas county.
It appears that the defendant is a corporation organized under the laws of the state of Ohio, and it is authorized to do business in Nebraska, and that it conducts its business upon the mutual assessment plan. On or about April 12, 1907, John W. Moon, the decedent, became a member of the Order of United Commercial Travelers of America, and received his certificate of membership- and insurance-on his life. The plaintiff, Libbie Moon, is the widow of the said John W. Moon, and she is his beneficiary. John W. Moon died in Omaha, Nebraska, February 16, 1911. The plaintiff filed her petition in the district court for Douglas county May 9, 1911. On the 28th day of May, 1912, plaintiff recovered a judgment assessing her damages in the sum of $6,606.25.
Section 5, article VI of the constitution of the association, provides:- “If any member of the order (other than a social member) who has paid, when due, all fees, fines, costs, dues and assessments charged or levied against him, shall sustain, during the continuance of his membership, and while in good standing, bodily injury effected through external, violent and accidental means, which, alone and independent of all other causes, shall occasion death immediately or within six months from the happening thereof, the Order of United Commercial Travelers of America, within ninety days of receipt of satisfactory proof of said accidental death, shall pay to the person or persons entitled thereto the sum of five thousand ($5,000) dollars, and shall also pay .to the person or persons entitled thereto, as aforesaid, thirteen hundred ($1300) dollars in weekly
It is alleged in the petition that said Moon, up to and including the day of his death, paid all fees, fines, costs, dues and assessments charged against him by the defendant, and at the time of his death was an active member in good standing in the order and entitled to all rights and benefits under its constitution; that on February 16, 1911, said John W. Moon sustained a bodily injury effected through external, violent and accidental means, which injury, alone and independent of all other causes, occasioned his death; that said Moon on that day, while walking up the steps leading into his yard, accidentally slipped and fell with force and violence, and that his external body about and near the region of his heart struck upon a large stone with such force as to injure the left auricle of his heart, and also injured his body upon its external surface, and that the said injury so effected through .said means, alone and independent of all other causes, occasioned the death of said Moon in about half an hour after he received said injury; that after the death of her husband plaintiff as his beneficiary performed all the conditions required of her by the defendant association, and permitted an autopsy to be held upon the remains of her said husband as demanded by the defendant, and furnished the defendant with notice and proofs of her husband’s death in support of her claim under the certificate hereinbefore mentioned. The prayer was for judgment for $6,300, with interest at 7 per cent, from the 20th day of March, with costs of suit.
On the 12th of February, 1912, the defendant filed its amended answer, setting up that it is a corporation organized under the laws of the state of Ohio as a fraternal beneficiary association for the purpose of uniting fraternally all commercial travelers, and providing, among other things, for the establishment and maintenance of an indemnity fund for the protection of its members from accidental injuries and their beneficiaries against death re-
At the trial George Moon testified, on. behalf of the plaintiff, that he was 26 years of age and the son of the plaintiff, and the deceased, John W. Moon; that on the day of his death he met his father in a cigar store and pool hall at 1904 Cuming street in Omaha, between 2 and 8 o’clock in the afternoon; that the father bought a cigar, and together the father arid the witness started for their home at 1429 North Fourteenth street, which was about four or five blocks north from the cigar store; that it was rainy; that the sidewalks were slippery and the moisture freezing; that the father was wearing a heavy ulster overcoat and was smoking a cigar; that there were steps just inside the gate; that these steps were about 8 inches high, and about 13 or 14 inches wide, made of hard cement; that a brick walk led from the steps up to the front porch about 14 or 15 feet away; that there were two wooden
The father traveled for a wholesale grocery firm in Council Bluffs, and the witness saw his father every Saturday and Sunday, and had so seen him for the five or six years that the father had been traveling for this grocery firm; that the witness did not notice any shortness of breath on the part of the father when he ran the washing machine that day, or at dinner; that his father was never at home sick at any time; that the father had a good complexion; that he seemed to breathe all right; that the witness never heard his father complain or make any complaint of pain about his heart or any other part of his body; that the father was 55 years old; that he had lost no time from sickness. The witness also described the father as being conscious up to within two or three minutes before his death. The witness also testified that his father appeared to be healthy, and that his color was healthy looking. It seems to have been only 25 or BO minutes from the time when the deceased slipped and fell until he died.
Mrs. Jacob Voegeli saw the deceased and his son come home together; they were talking and laughing; she saw them turn in toward the house; she saw Moon as he fell ■on the steps, and noticed that he fell on his left side; she noticed his son take him by his arm after he got up.
Fred J. Stock described the color of the deceased as good. He never noticed any blueness in Moon’s appearance or any shortness of breath. This witness described a spot on the left side of the upper part of the body. It was a pinkish spot two or three inches in diameter and in the region of the third or fourth rib from the bottom on the left side. The witness bathed the body and embalmed it. He saw the heart of the deceased and saw that the left auricle was ruptured. He squeezed the heart and blood would emerge from the rupture, and there was clotted blood in the auricle where the rupture was; the clot was perhaps the size of the ordinary hickory nut.
Dr. MeCleneghan testified that he took up the subject of the autopsy with Dr. Fitzgibbon, one of the doctors
Mrs. Harriet Marty testified that she was a daughter of the deceased and the plaintiff; that her father had been a traveling man for 13 or 14 years for Gronew-eg & Schoentgen, and also for Raymond Brothers & Clarke of Lincoln, and Meyer & Raapke of Omaha; that during those years-he had never been confined to his room on account of sickness; that she saw her father in the morning on the day he died, and that they took lunch together at noon that day, and that she saw him walk down the street with Don (a son) ; that at lunch they were talking and laughing-together, and that her father made no complaint of any kind and looked the same as usual.
Don Moon testified that he saw his father on the day of his death. At lunch the father talked and laughed and enjoyed the meal, as they all did; that his father did not complain of fatigue or prostration or pain or anything" of that kind; that he walked with his father from Nineteenth and Cuming streets, about four blocks from the home; that he looked and walked as usual.
Prank Read testified that he had known the deceased 7% years, and during that time had seen him every Sat
S. H. Nichols testified that he had known the deceased «orne 7 or 8 years. He saw him once a week on Saturdays when he came in, and occasionally on Sunday morning. The witness saw him often. He testified: “His appearance was that of a perfectly healthy man;” that he never heard him make any complaint; that he did not see any bluish appearance in his complexion.
Dr. Goetz testified that he had studied fnedicine in Cincinnati, Ohio, Vienna, and Berlin, and that he was then practicing in Omaha; that in the opinion of the witness the «ole cause of the death of the deceased was the rupture of the heart, or some large blood vessel, or an aneurism— some hemorrhage.
R. F. Seitz, a traveling salesman, testified that he had been out on the road with the deceased covering his territory with him 3 or 4 times a year; that he was with him for 5 or 6 years; that these trips took about 2 weeks; that Moon traveled over the Missouri Pacific, Burlington, and Rock Island, and southwest of Council Bluffs in Nebraska; that he and the witness sometimes would make us high as 5 towns in a day; that their business required them to Walk considerably; that the last time they traveled together Avas in November or December before Moon’s death; that during the 5 or 6 years of their association the witness observed the ability of the deceased to move •around and do business., and his personal appearance and physical condition; that he kept going and attending to business; that he did not make complaints to the witness: that he did not complain of any pain in his heart, back,
Mrs. Flood testified that she lived about four blocks from the Moon residence; that the day of his death it was a rainy and sleety day, and the sidewalks were slippery; that she had occasion to go out of doors that day, and saw Mr. Moon in the morning, and again at noon; that he was walking straight, smoking a cigar, and talking and laughing with his son; she saw him in the afternoon, and he and his son were walking as she saw them the first time; that she saw the face of the deceased, and that the face looked well to her, and that the deceased did not look sick, and that he was talking.
Miss Anna Tighe testified that she saw the deceased two> nights before his death; that his complexion and color at that time were the same as at any other time when she had seen him; that he moved around as any one would; that she had never heard him complain of any pains or sickness.
The plaintiff testified that she had been married to the deceased 31 years, 14 years of which time they had lived in Omaha; that the deceased was a traveling salesman, giving the names of the firms for whom he had worked; that during their married life the deceased had never lost any time by reason of sickness; that about a month before his death he had a touch of grippe; that that was the only sickness she knew about; that it only lasted for a few days; that on the morning of the day of his death he ran the washing machine and wringer for the plaintiff, and took lunch at home with the family; that his complexion was the same as it always was; that she had never heard him make any complaint of fever; that his face did not appear feverish or blue; that he made no complaint of suffering pain on that day, or previously; that there were no eruptions on the skin or shortness of breath that day or prior thereto which the plaintiff noticed; that she saw him come in at the door on his return from down town after lunch on the day of his death; that he was holding his side and
Dr. Paul H. Ellis testified that he was a graduate from Creighton Medical College, Omaha; that for 6 or 7 years he had taught the practice of medicine in the Creighton Medical 'College; that he had been practicing medicine and surgery in Omaha for 15 years. In answer to a hypothetical question, claimed to cover the main facts in the case, the doctor testified, in substance, that the fall was the ’cause of his death.
It is in evidence that the right auricle of the heart was thin, probably in the neighborhood of one-twelfth of an inch; that the left auricle was a trifle thinner than the right; that with age the walls of the heart grow thinner, that they become so thin that the light will show through; that a diseased kidney will produce a gradual enlargement of the heart because it is an impediment in the circulation. It is also in evidence in this case that the kidneys were diseased; the disease seems to have been Bright’s
Dr. Fitzgibbon testified that he was present at the post mortem; that Dr. E. O. Henry and Dr. McClenegban were there; that Dr. McCleneghan did the operating; that when tbe witness and Dr. Henry arrived tbe autopsy was already commenced by Dr. McClenegban, who bad begun to use the knife; that tbe heart, sections of tbe aorta (which distributes the blood), tbe kidney, sections of tbe liver and tbe spleen, sections of tbe femoral artery, and tbe brain were removed; that tbe femoral artery was found to be brittle, sclerosed, bard (unnaturally bard and unnaturally brittle, except as particularly applicable to tbe condition of tbe arteries in old men) ; that tbe body was noticeable for an unusual amount of fatty tissue; that tbe heart was enlarged; that tbe valves were diseased in tbe sense that they were shrunken and hardened; that tbe kidney examined was enlarged; that tbe spleen was enlarged; that tbe arteries were hardened; that tbe heart Avas about twice tbe normal size; that tbe walls were unusually thick in some pláces, and unusually thin in others; that there was a puncture or rupture of tbe left auricle; that tbe rupture was a tear one-half to three-fourths of an inch across; that tbe walls of tbe left auricle where tbe rupture occurred were translucent so that you could see tbe light shine through them; that tbe wall was from, one-twelfth to one-fifteenth of an inch thick; that it Avas diseased and degenerated at tbe particular point of tbe rupture; that the condition was due to chronic disease; that tbe condition of tbe kidney was due to Bright’s disease; that the rupture of tbe left auricle of tbe heart caused tbe death of tbe deceased; that tbe heart looked to the witness to be at least one and one-half times as large as a normal heart; that there were lacerations around tbe rupture extending from nothing to one-fourth of an inch, resembling somewhat tbe cracks in a broken window. This witness was acting as tbe surgeon of tbe defendant order.
Dr. W. O. Henry testified be bad lived in Omaha 21 years; that be was a graduate of Bellevue College of New
It was contended by the defendant that-, if “death Avas occasioned by a bodily injury effected through external violence and accidental means alone, and independent of
There was a trial to the jury, and the physical condition of the deceased immediately prior to his death was necessarily one of the subjects of such investigation. The jury returned its verdict for the plaintiff, and the judgment of the district court was rendered upon it. Unless there was error in the conduct of the trial prejudicial to the defendant, we are not disposed to disturb the judgment, because it seems to be fully supported by the evidence.
Dr. W. O. Henry, a witness for the defendant, testified that the rupture of the auricle would produce death, also
In Caldwell v. Iowa State Traveling Men’s Ass’n, 156 Ia. 327, it was held: Where death results from erysipelas, which follows as a natural, though not as a neces-, sary, consequence of an accidental Avound upon the cheek, it may be deemed the proximate result of the wound, and not of the disease, within the requirements of an accident policy that death must result solely by accidental means. In the same case it was held: In an action on an accident insurance policy, evidence of the existence of a slight Avound upon the cheek Avas sufficient to support a finding that the cause of the Avound was violent and external. In the body of the opinion in that case it was said that the certificate provided for accident insurance only, and that the question at issue was whether the death of the assured was caused solely by external, A'iolent, and accidental means. It is then related that the assured received a slight accidental injury on his left cheek, which caused a slight abrasion of the skin, and that it was this injury which resulted in the erysipelas. It is also said that it is undisputed that the immediate cause of the death of the assured was the erysipelas. It was contended by the defendant in that case that the evidence was wholly insufficient to sustain a finding that any accidental injury was in fact sustained by the assured, and there Avas a motion by the defendant for a directed verdict, which was denied. The court held that there Avas enough evidence to malee a prima facie case and to go to the jury. It was said that the evidence was sufficient to sustain a finding that the
In Jenkins v. Hawkeye Commercial Men’s Ass’n, 147 Ia. 113, 30 L. R. A. n. s. 1181, the assured was 61 years of age. A fish bone lodged in the rectum, and, being removed therefrom by the deceased, caused an accidental wound, from which blood-poisoning ensued and death resulted. In that case Carnes v. Iowa State Traveling Men’s Ass’n, 106 Ia. 281, 68 Am. St. Rep. 306, and Miller v. Fidelity & Casualty Co., 97 Fed. 836, are cited with many other cases. In the Jenkins case it is said that the cases last above cited proceed on the theory that the design of the provision of the policy limiting it to “accidental operation of external means may be wholly internal.” It is said that they proceed on the theory that the design of the provision is to guard the insurer against a liability upon a fraudulent claim of the insured for indemnity for bodily injuries “of which the only evidence might be the word of the person, and that, as the terms of the policy are to be construed most strongly against the insurer, the means coming from outside' the body, though the injury be internal, should be regarded as external.” The following authorities support the doctrine that death or injury from substances taken internally will be deemed to have been caused by external means: Bayless v. Travelers Ins. Co., 14 Blatchf. 143, Fed. Cas., No. 1138 (taking larger dose, of opium than prescribed); Miller v. Fidelity & Casualty Co., 97 Fed. 836 (swallowing certain hard, pointed, and resistant substances of food); Fidelity & Casualty Co. v. Lowenstein, 97 Fed. 17, 46 L. R. A. 450 (unconsciously and unintentionally inhaling gas Avhile asleep); Healey v. Mutual Accident Ass’n, 133 Ill. 556, 9 L. R. A. 371 (accidentally drinking poison); Metropolitan Accident Ass’n v. Froiland, 161 Ill. 30, 52 Am. St. Rep. 359; Travelers Ins. Co. v. Dunlap, 59 Ill. App. 515, affirmed in 160 Ill. 642 (taking carbolic acid); Carnes v. Iowa State Traveling Men’s Ass’n, supra, (overdose of morphine) ; American Accident Co. v. Reigart, 94 Ky. 547, 21 L. R. A. 651 (food
In French v. Fidelity & Casualty Co., 135 Wis. 259, the assured accidentally struck the lower part of his right leg on a small iron safe. Septic poisoning set in, and he died as a result' of the injury. The policy had a clause in It “against bodily injuries sustained through external, violent, and accidental means.” This clause stipulated that, “if death shall result from such injuries within 90 days, independently of all other causes, the company will pay the principal sum of $5,000.” It was held that the blood-poisoning in this case, following a slight accidental abrasion of the skin, was within the provision “bodily injuries sustained through external, violent, and accidental means independently of all other causes.” The company was held liable.
In Delaney v. Modern Accident Club, 121 Ia. 529, 63 L. R. A. 603, it was held that, where death caused by blood-poisoning received through a slight wound on the hand is the result of an' accidental injury, it is within the meaning of an accident insurance policy, whether the poisoning was introduced into the wound by the instrument which inflicted it or from some other source.
For anything that appears in the evidence, the deceased might have lived many years but for the accident. We are of the opinion that the fall was the proximate cause of his death, and that the injury sustained is within the conditions of membership- as set out in the certificate.
The judgment of the district court is right, and it is
Affirmed.
