101 Ky. 303 | Ky. Ct. App. | 1897
delivered the opinion oe the court.
This is an action on a policy of insurance against bodily injuries and death effected through “external, violent and
The vital question in the case is w>as the death of Omberg effected through “external, violent and accidental” means, or was his death caused by disease?
Incident to this question is- one respecting the competency of certain testimony offered by the appellant and rejected by the trial judge, conduciug to show the nature and origin of the alleged accident, resulting, as she contends, in the death of the assured.
And still further is the question, whether, conceding that Omberg’s death was the result of the bite of an insect, which produced septic poisoning, as is contended by appellant, payment of the policy is yet to be denied because the insurance was not to extend to or cover accidental injuries or death resulting “from poison in any form or- manner” or “contact with poisonous substances?”
And, first, was the death of the assured the result of a disease or of an accident? Omberg was a traveling salesman of Louisville, Ky., and a stout, healthy man of some forty-eight years of age. On or about July 20,1893, while out on a business trip, he went to his sister’s home in Rome, Q-a.
He was very lame; his foot was swollen and there was an
This proposed evidence was rejected. It also appeared that Omberg made similar statements to his sisters when he came to their house in explanation of his lameness and the swollen condition of Ms toe and foot. These statements were also rejected.
The body of Omberg was brought to Louisville, where, in about two weeks after his death and when the remains were badly decomposed and affected by the use of embalming fluid, an autopsy was held which failed to disclose any evidence of blood poisoning, but, on the contrary, conduced to show that death had been caused by disease — namely, by the rupture of an abdominal aneurism — a disease shown to be of gradual development. This is in substance the case and the state of fact presented. The trial court instructed peremptorily for the defendant.
The case of Dabbert v. Travelers Insurance Co., 2 Cinti. Sup. Ct. Rept., 98, is directly in point. This case is reported by Mr. Bigelow in volume 4, page 866, of his Life- and Accident Insurance Reports, and the court (Judge Alonzo Taft) holds that ‘fin an action for loss under a policy against death by accident, a statement made by a decedent to his physician, upon which the physician forms his opinion and makes a
In that case the insured became suddenly sick and to his physician attributed his sickness to an injury to his back and side by a fall received when no one was present. The learned judge said: “I am satisfied that there is a tendency in the decisions of the present" time to enlarge the range of testimony, especially when it is necessary to avoid a failure of justice. The statements óf the history of his case made to his physician by a patient who is seeking relief from pain and severe sickness are entitled to credit. To state untruly to his doctor the cause of his sickness would be directly against his most vital interest in saving his health and life; in such case the absence of a statement by the patient of such a cause of his -sickness would be an important element in forming the physician’s-opinion. For if a patient did not refer to such an accident as the cause of his sickness, the doctor would necessarily conclude that the symptoms did not come from such a cause,” citing Fort v. Brown, 45 Barb., 369, and Barber v. Mertiam, 2, Allen, 324. These cases fully support the opinion. Mr. Bliss, in his work on Life Insurance, second edition, page 633, says: “In a case where an action was brought on an accident policy, the Supreme Court” (evidently referring to-the Dabbert case) “passed upon the question of the admissibility of the declarations of the insured as to the injuries he had suffered, and the mode in which they- were incurred. They held that the declarations of a party himself, to whomsoever made, are competent evidence when confined strictly
We are further satisfied in this case that the death of the assured, if it occurred as claimed by the appellant, was not the result of “'poison in any form or manner” or “contact with poisonous substances” within the meaning of those provisions in the policy. If so, then if blood poisoning were the immediate cause of death from an accidental gun shot, the clause would prevent recovery — a conclusion wholly at war with the manifest purpose of the contract.
So death from a rattlesnake bite is clearly from poison and contact with poisonous substances, but wu presume no one will contend that recovery in such a death could be denied. Such causes of death as are last mentioned are not understood to be causes of death from poisoning or contact with poisonous substances in the ordinary meaning of those terms.
The judgment is reversed for proceedings consistent with this opinion.
Chief Justice Lewis not sitting.