127 P.2d 444 | Kan. | 1942
The opinion of the court was delivered by
This was an action to recover double indemnity on a life insurance policy which provided that upon receipt of proof that the insured had sustained bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured, the defendant would pay an additional, amount equal to the face of the policy.
The late Mrs. Jessie Johnson, of Kansas City, Mo., held a policy of life insurance for $516 issued by defendant in 1931, and payable to plaintiff at her death. She died on October 27,1938, and her body was taken to an undertaker’s establishment in Kansas City, Kan. The attending physician declined to sign a death certificate without
Defendant paid the face value of the policy without cavil, but rejected plaintiff’s claim for the double indemnity on the ground that there was no proof that the death of the insured was caused by “external, violent and accidental means, resulting directly and independently of all other causes,” within the terms of the insurance contract.
Hence this lawsuit. Issues were joined, and a jury was called and sworn. Plaintiff adduced his evidence. Defendant’s demurrer to its sufficiency was overruled., Defendant then adduced its evidence, and the cause was submitted to the jury, which eventually reported they could not agree. The court declared a mistrial and discharged the jury.
Defendant appeals, assigning error on the trial court’s ruling on its demurrer to plaintiff’s evidence.
The evidence relied on to sustain plaintiff’s claim to the double indemnity was as follows:
The insured was about fifty-one years of age and somewhat overweight. On the afternoon of August 14, 1938, two women, a Mrs. Harness and Myrtle Simmons, were visiting in her home. She excused herself to them, saying she was going to take a bath. Sometime later, her two visitors heard a splash and a dull thud. They ran to the bathroom and found the floor covered with water, and Mrs. Johnson sitting in the tub. One of those visiting women, Myrtle Simmons, testified that Mrs. Johnson had fallen in the tub and could not get out of it, that she and Mrs. Harness tried to get her out, but Mrs. Johnson said, “Wait a minute, I am hurt.” When asked where, she answered, “In my right side; you all wait.” Eventually the two women got her out of the tub and helped her into bed. She complained of her side hurting while she was in the tub and after they put her to bed. The same witness testified that she called the same evening and found Mrs. Johnson still in bed and complaining of her side.
Eight days later, on August 22, Mrs. Johnson was taken to a hos
The death certificate, in part, reads:
“The principal cause of death and related causes of importance were as follows:
“Abscess of the liver.
“Other contributory causes of importance: Fall.
“What test confirmed diagnosis? Blood cultures.
“Was there an autopsy? Yes.
“If death was due to external causes (violence), fill in the following: Ac- . cident. Yes.
“Where did injury occur? At home, 1410 Troost.
“Manner of injury. Fall in the bathtub.
“Nature of injury. [No answer.]
“Was disease or injury in any way related to occupation of deceased? No.
“(Signed) Eugene P. Chatman.”
There was some evidence that a few days before the alleged accident the deceased had a touch of indigestion caused by eating cheese, but that she had completely recovered therefrom before August 14.
In this appeal counsel for defendant contend that the evidence as summarized above was insufficient to take the case to the jury. They even insist that there was no evidence that the insured fell in the bathtub. We, however, have no hesitancy in holding the fact of her fall and the time and place of it were about as well proved as can ordinarily be done in any case where eyewitnesses are wanting and where there are no objective symptoms of injury. In our recent accident insurance case of Broyles v. Order of United, Commercial Travelers, 155 Kan. 74, 122 P. 2d 763, the insured was discovered lying on the floor of his office with a fractured skull. His death followed in five days, and in an action to recover on the policy whose terms were similar to those of the one now before us we held that the circumstances warranted a presumption that the insured’s death was caused by an accidental fall rather than by suicide or murder.
Counsel for appellee does not help us over this dilemma. He cites cases like Williams v. General A. F. & L. Assurance Corp., 144 Kan. 755, 62 P. 2d 856, where we said, “If the accident be shown to be the cause of the injury for which the action is brought plaintiff can recover.” Certainly he could recover in such a case. Further along in the same opinion, it is said:
“Most of the courts look to the evidence to see whether the accident caused the injury for which the action was brought. Many of the cases use the term ‘proximate cause,’ as do some of the leading authorities. (Citations.) . . . In some of the cases cited these terms are used: ‘efficient and predominating cause,’ ‘independent and sufficient cause,’ ‘sole moving and active cause.’ But, without regard to the characterizing words used, the proper inquiry, and the one usually made, is whether the injury for which suit was brought was caused by the accident. When that is controverted, generally it is held to be a question for the jury.” (p. 758.)
None of the other cases cited supports the position of the appellee.
A painstaking consideration of the record and the briefs constrains a majority of this court to hold that defendant’s demurrer to plaintiff’s evidence should have been sustained. The judgment is therefore reversed with directions to enter judgment for defendant.