Thе district court directed a verdict against appellant, named beneficiary in a policy of insurance issued by appellee upon the life of her deceased husband. Her action was brought to recover dоuble indemnity to be payable “upon receipt of due proof that the insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, in•dependently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury. * * * ”
Thе insured had been in ill health and under the care and treatment of physicians for some seven or eight years. For several years immediately preceding his death, he had received total and permanent disability insurancе benefits under the policy. In 1933, his attending physician had made a diagnosis of chronic cardiac asthma with hypertrophy.
On October 12, 1935, while driving his automobile at about 25 miles per hour, the insured met in head-on collision another automobile traveling at approximately the same rate of speed. In the impact, his chest struck the steering wheel with sufficient force to bend the wheel. A motorist, who drove up to the scene of the accident, took the insured and his wife, the appellant, to Dr. Moore, who was one of .the insured’s attending physicians. Upon discerning a bruise on the insured’s chest, the doctor advised an X-ray examination, but subsequently received no report upon his recommendation.
The insured died on November 26, 1935, 45 days after the accident. Dr. Moore certified in writing to the appellee insurance company that, at the time of the accident, he had not considered the slight bruisе on the chest of decedent to be serious; and that first-aid examination had revealed nothing which could have caused his patient’s death. On the witness stand, the doctor adhered to his previously expressed opinion, qualified by the condition that he had lacked the aid to diagnosis which an X-ray examination would have afforded. He testified, further, that he could not answer correctly a propounded hypothetical question as to the сause of the insured’s death, unless he had treated the man from the time of the accident to the date of his death. This he had not done having been succeeded by Dr. Westerfield as attending physician.
In testifying as an expert, Dr. Moore described asthma as a congestion of the air cells, which can cause death if the congestion is extensive enough to cause solidification of the lung. Viewing the physician’s testimony in entirety, no reasonable inference may be drawn that traumatic injury independently and exclusively caused the death of the insured.
Dr. Westerfield, to whom the insured was taken by a relative a day or two after the accident, also ordered an X-ray examination. Dr. Gillitn performed this service; but there is no evidence in the record as to what was revealed. Later, the insured was taken to Dr. Shocklee, an osteopath, who taped his chest. The reason for this measure, hоwever, does not appear in the evidence. Appellant states in her brief: “Unfortunately both the doctor who made the X-Ray and who taped the chest are dead, making it impossible to secure the X-Ray for exаmination and interpretation or for us to secure the testimony of the doctor who taped the chest to ascertain just why it had been taped.”
From lay testimony it appears that, prior to the accident, the insured was in bad health and did no regular farm work, but managed his farm and did chores such as milking cows, feeding and attending to chickens, and drawing and carrying water from a well. After the accident, he
There was no other medical testimony than that given by Dr. Moore, except the testimony of Dr. Howell J. Davis, who never attended the insured; indeed, did not even know him. His testimony was purely hypothetical and was most speculative in character. His opinion testimony was to the effect that congestion of the lungs sufficient to cause death can ensue from a chest blow; that a healthy person can sustain such fatal injury; that there can be such serious congestion of lungs in a person suffering from specified ailments as might cause death independently of those ailments; that congestiоn could have been produced by the character of the injury he was asked to assume, even in a person suffering from no ailment.
That a verdict cannot properly stand upon testimony amounting to conjecture, based on the possibility that a thing could have happened without proof that it did happen, is the law of Kentucky. Cincinnati, N. O. & T. P. Ry. Co. v. Humphrey’s Adm’r,
Moreover, hypothetical questions put to expert witnesses must reflect the true state of facts in evidence. New York Life Insurance Co. v. Long,
Holding that mere supposition that fatal disease resulted from an accident will not support a judgmеnt in favor of the beneficiary of an accident policy, the Court of Appeals of Kentucky reversed the trial court for error in not directing a verdict in National Life & Accident Insurance Co. v. Kendall,
It is well settled in Kentucky, as in this circuit and elsewhere, that a jury is not permitted to speculate upon its verdict. Bahre v. Travelers’ Protective Ass’n of America,
In the case at bar, the death certificate was signed by Dr. A. A. Westerfield. This physician certified that he attended the deceased from November 12, 1935, tо November 26, 1935, and last saw him on the date of his death (November 26, 1935); that the principal cause of death and related causes of importance in order of onset were “congestion of lung” and “other complicаtion” ; and that the contributing cause of importance not related to the principal cause was an “automobile accident.”
The printed form of death certificate, drawn in compliance with 2062a-7, Kentucky Statutes and furnished and used by the Bureau of Vital Statistics, Department of Health, Commonwealth of Kentucky, included the direction that “if death was due to external causes (violence),” [listing an accident as such] answers should be made stating, in case of accidents, the date, place, manner and nature of the injury. This part of the form was not filled in by Dr. Westerfield. The reasonable inference is that he did not consider the death of the insured as due to accident.
Kentucky law requires that a certified copy of the death certificate “shall be prima facie evidence in all courts and places of the facts therein stated” (Kentucky Statutes, Sec. 2062a-21). See Fоrd v. Commonwealth Life Ins. Co.,
Applying the statute to a case where the cause of death on a death certificate was given as suicide, and the finding of a coroner’s jury was to the same effect, the Court of Appeals stated that, upon careful examination of three volumes of evidence, nothing had been found “to overcome these things, on which anything more than a suspicion can be rested,” and held that the insurer was entitled to a directed verdict in
The burden of proof rested uрon appellant to show that the death of her husband resulted directly from “bodily injury effected solely through external violent and accidental means independently and exclusively of all other causes.” See Standard Accident Ins. Co. v. Strunk,
A verdict should be directed against the party upon whom rests the burden of proof, where from the evidence the injury claimed could with equal probability have resulted from a cause upon which liability could not bе predicated. Hughes v. Cincinnati, etc., R. R. Co.,
With the burden of proof resting upon her, appellant’s failure to call Dr. Westerfield as a witness to explain away, if possible, the presumption raised against her by the death certificate signed by the doctor justifies the inference that the testimony of Dr. Westerfield, if adduced, would not have sustained her position. See Rice v. Rice,
Appellant cites certain opinions of the Court of Appeаls of Kentucky in support of her argument that a verdict for appellee should not have been directed. Among her cited cases are included: Guardian Life Ins. Co. v. Robison,
This rule was expressly abolished by the decision of the Court of Appeals of Kentucky in Nugent v. Nugent’s Ex’r, decided Januаry 12, 1940,
In Hartford Fire Ins. Co. v. Webb,
From the foregoing review of the Kentucky decisiоns, it is apparent that Kentucky law, pointing to the propriety of a directed verdict in the instant case, conforms to the settled rule of this circuit. Our court has repeatedly held that to submit to a jury a choice of prоbabilities is but to permit them to conjecture or guess, and evidence which presents no more than such choice is not substantial. Parker v. Gulf Refining Co., 6 Cir.,
Viewing all the evidence in the case in the light most favorable to appellant, we have reached the conclusion that the district court properly directed a verdict for appellee.
The judgment is affirmed.