Woelfle v. Connecticut Mutual Life InsuranceWoelfle v. Connecticut Mutual Life Insurance
Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the aggregate amount of $2,253.87, which included the principal sum sued for, with interest. Judgment was rendered accordingly; and following an unavailing motion for a new trial, defendant‘s appeal to this court has been perfected in the usual course.
By the terms of its policy defendant agreed to pay the accidental death benefit provided for therein upon the receipt of due proof, among other things, that the death of the insured had “resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent, and accidental means, of which (except in case of drowning or of internal injuries revealed by an autopsy) there shall be evidence by a visible contusion or wound on the exterior of the body.”
Incidentally, it is of interest to note that the insured, at the time of his death, not only had the policy in suit, but also had two policies issued by the London Guarantee & Accident Company of London, England, which, as in the case of the policy now under consideration, insured against death resulting from bodily injuries effected through accidental means, directly and independently of all other causes. An action upon those policies was brought by plaintiff in the District Court of the United States for the Eastern District of Missouri, resulting in the return of a verdict in plaintiff‘s favor. That case of course involved substantially the same facts as are present in the case at bar, the chief difference eonsising, so counsel seem to agree, in the extent to which plaintiff‘s medical witnesses were crossexamined. Following the verdict in plaintiff‘s favor, an appeal was taken by the insurance company to the Circuit Court of Appeals for the Eighth Circuit, where it was held that a case had been made for the jury, though the judgment was reversed and the cause remanded on account of what the court conсeived to have been improper argument on the part of plaintiff‘s counsel to the jury. The Court‘s opinion in that case is of obvious interest in the decision of the case at bar, and is to be found reported as London Guarantee & Accident Company v. Woelfle (C. C. A.), 83 F. (2d) 325.
At the outset of this case there is a question presented of whether the Court below acquired jurisdiction over defendant‘s person by virtue of the service of summons upon the superintendent of the insurance department as defendant‘s statutory agent.
The applicable statute is
In this case defendant is a Connecticut Corporation but licensed to do business in this State; and, in compliance with statutory requirements, it has heretofore appointed the superintendent of the insurance department its agent for the acceptance of service of process on its behalf. The policy in suit was applied for by the insured and was
Upon this admitted state of facts defendant has consistently taken the position that plaintiff was not entitled to the benefit of
Following the sheriff‘s return of service defendant moved to quash the same, and when its motion to quash was overruled it joined a plea to the jurisdiction with its answer to the merits. Thereafter, on plaintiff‘s motion, the plea to the jurisdiction was stricken from the answer, and the action of the court in that regard is made the first point for our consideration on this appeal.
We think that the ruling of the court was undoubtedly correct. The test of the plaintiff‘s right in any case to have service upon the superintendent of the insurance department is whether the policy or liability sued on is “outstanding in this State.” [State ex rel. v. Landwehr, 318 Mo. 181, 191 300 S. W. 294, 298; State ex rel. v. Muller, 230 Mo. App. 962, 969, 90 S. W. (2d) 171, 174.] But tо be “outstanding in this State” for the purpose of service of summons in an action brought upon it, a policy need not have been written in Missouri, nor is it in all events essential that the plaintiff should have been a resident of Missouri at the time of the death of the insured. Policies or liabilities “outstanding in this State” within the meaning of the statute necessarily include, not only policies written in Missouri, but also policies written or liabilities assumed outside of this State, but which are owned and held by residents of this State during the period of the agency of the superintendent of the insurance department and at the time suit is brought thereon. In this instance, as we have already pointed out, plaintiff was a resident of Missouri at the time her action was instituted, and the superintendent of the insurance department was the statutory agent of defendant at the time service of proсess was had upon him. The service was therefore valid and binding, and the very facts upon which defendant based
Not only does this conclusion conform to that which was reached by the Circuit Court of Appeals in London Guarantee & Accident Company v. Woelfle, supra, but as a matter of fact are advised by counsel that when the lower court overruled defendant‘s motion to quash the sheriff‘s return, defendant applied to the Supreme Court for, but was refused, a writ of prohibition designed to prohibit the lower court from undertaking to assume jurisdiction over defendant‘s person by virtue of such service of process. We rule, therefore, that no error was committed in the court‘s denial of defendant‘s plea to the jurisdiction.
This brings us then to a consideration of those facts in the case which have to do with the question of whether there was substantial evidence to show that the death of the insured had resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent, and accidental means within the purview of the policy, which means, translated into the terms of plaintiff‘s actual contention, from a ruptured aorta suffered by the insured as the result of his having accidentally fallen to the ground while engaged in a game of golf upon the course of the Egyptian Golf Club located near Cairo, Illinois.
The insured was a physician and surgeon, and had been engaged in the practice of his profession in Cairo for approximately twenty-five years at the time of his death on September 9, 1932. He was then just short of sixty-one years of age; weighed from one hundred eighty-five to one hundrеd ninety pounds; was athletically inclined; and had a happy, jovial disposition. His complexion was ruddy, his step quick and elastic, and according to plaintiff‘s evidence he had always enjoyed good health; had never been wont to complain of feeling badly; and had never been confined to his home with illness of any consequence.
On September 5, 1932, which was Labor Day, the insured and one Block went out early in the afternoon for a twosome of golf on the grounds of the Egyptian Golf Club which was located eleven miles out from Cairo. Though this was only a nine-hole course, it was evidently not without its difficulties, being described by the witnesses as quite hilly, with the last three holes laid out upon the most irregular part of the course.
So far as the evidence discloses, the game had progressed without misadventure until on the approach tо the seventh hole, when both Block and the insured lost their balls in the grass along the fairway. The balls had seemingly fallen from one hundred fifty to two hundred feet apart, and while Block and his caddy went to one side of the fairway to look for Block‘s ball, the insured and his caddy went to the other side of the fairway to search for the insured‘s ball.
Block‘s excuse for having made the statements regarding the fall was that he had been requested by plaintiff to aid her in collecting her insurance, and that even though he himself had not actually seen the insured fall, yet as an old friend of the family he had been willing to give the statements to that effect upon plaintiff‘s representation and assurance to him that her husband, during his last illness, had confided to her that he had fallen on the golf course.
The insured‘s caddy would appear to have seen nothing оf the occurrence itself, and the only light he was able to throw upon the case was that whereas he had noticed that the insured‘s knickers were clean when he left the clubhouse, he had observed on the seventh fairway that the right leg had mud on it from the knee to the hip. Indeed, when the insured‘s effects were later removed from his locker, it was found that the knickers were soiled just as the caddy had observed them to be on the last day that the insured had worn them.
It is quite evident that the insured himself had no apprehensions at the time about any serious consequences resulting from his fall, since he appears to have said nothing to Block about the matter and to have made no complaint of any sort. To the contrary, he played out the last three holes of the course, though in doing so Block observed that his score for those holes was higher than usual, and then, at the completion of the game, he and Block went back to the clubhouse and had their showers and dressed, after which the insured drove his car for the distance of eleven miles back to Cairo.
The fact is, however, that the strain must even then have been beginning to tell on the insured, since upon his arrival at his home about four o‘clock he lay down for a while on the davenette, a thing which it was most unusual for him to do. In recounting the incident plaintiff testified that when she came downstairs and found him lying on the davenette she observed that his face was pale and drawn.
Arriving at his daughter‘s home in Carbondale he walked slowly up the steps and into the house, but instead of following his usual habit of picking up his grandchildren and permitting them to throw their arms around his neck, he refused to allow them to touch his neck at all. After dinner he remarked that he was not feeling well, and as a consequence lay down until nine o‘clock when he and plaintiff started back alone to Cairo. On the return trip the insured did the driving, though there were times, according to plaintiff‘s observance of his conduct, when he would slump over the wheel and swerve off of the pavement before he would be able to straighten up and regain control of the car.
During the night, as well as on the following morning, the insured complained to plaintiff of a severe pain in his neck. He nevertheless went to his office as usual on Tuesday, but was unable to wait on his patients. When he returned home in the afternoon he again lay down on the davenette, but left word with plaintiff to call him shortly before six o‘clock so that he might attend a meeting of the Rotary Club which was to be held that evening. It seems that he had been absent from a number of the meetings, and was fearful that under the rules of the club he would be suspended from membership if he did not attend the meeting which was scheduled for that night.
Leaving the Rotary Club meeting at an early hour, he stopped by his dentist‘s office on his way home for the purpose of having X-ray pictures taken of his teeth in the hope of determining whether the pictures might reveal a cause for the pain he was experiencing in his neck and shoulder. This fact would seem to indicate that he still had no suspicion of any condition in and around his heart to which his discomfort was to be attributed.
During the night he aroused plaintiff; complained to her that his pain was so severe that he could not endure it; and had her get his hypodermic needle out of his bag so that he might give himself an injection of morphine. During Wednesday he remained in bed, taking capsules of his own preparation for the relief of his pain.
On Thursday morning plaintiff called in Dr. J. J. Rendleman, who made an examination of the insured, diagnosed his trouble as influenza, and prescribed for him accordingly. It was thought by both Dr. Rendleman and the insured that some slight improvement
Some months later, after a controversy had developed between plaintiff and the insurance companies relative to the question of whether she was entitled to payment of the accidental death benefit, the body of the insured was exhumed and an autopsy performed in the presence of a number of pathologists and other medical experts representing the several parties concerned. The result of the autopsy was to show that death had resulted, not from angina pectoris as Dr. Rendleman had supposed, but from a rupture of the aorta at a point about an inch or an inch and a half above thе valves at the juncture of the aorta with the heart.
The aorta, of course, is the large artery of the body, about one and a half inches in diameter, through which the blood is carried away from the heart to be ultimately distributed to the various parts of the body. It is composed of three layers, an inner coat called the intima, a middle coat called the media, and an outer coat called the adventitia. The intima is thinner than tissue paper, and has a smooth, slick surface so designed by nature as to afford a minimum of resistance to the flow of blood through the vessel. The media, which is about one-eighth of an inch in thickness, is made up of muscle, tissue and elastic fibers of a character to give strength to the artery. It is in reality the important coat so far as the purpose and function of the artery is concеrned. The adventitia is composed of loosely arranged muscular tissue so designed as to serve as a support for the minor blood vessels and nerves which supply the other coats, and especially the middle coat, with energy.
The autopsy revealed that a primary or initial tear about a half inch in length had occurred across the inner lining, and possibly through a portion of the middle lining, of the aorta, not extending as a tear through the entire wall of the vessel, but evidenced on the outside by only a pin point opening through which the blood had slowly escaped into the paricardial sac which enclosed the heart.
Plaintiff put on a number of eminent pathologists and medical experts, who testified, in substance, that their several examinations of specimens of the insured‘s aorta had revealed that it had bеen free from disease, or at least so at the site of the tear; that there had been no evidence of a weakening or aneurysm of the arterial wall; that the initial rupture, which had necessarily been due to a sudden stress or rise of pressure from within the organ undoubtedly superinduced by some such thing as a fall, or fright, or excitement, had been only partial; that it is scientifically possible for one to live for days, or even for weeks, with only a partial rupture of the aorta; and
While plaintiff‘s witnesses admitted that they had found but little, if any, evidence of healing around the region of the tear, and this regardless of the fact that the insured had lived for four days after the occurrence of the trauma, the absence of repair was explained by the fact that the aorta, being a pulsating organ, in the very nature of things cannot be brought to that state of rest and inactively which is a requisite for quick and perfect healing.
Defendant, for its part, put on pathologists and other medical experts of equal eminence with those employed by plaintiff, who testified, in substance, that a normаl aorta cannot be ruptured by mere internal pressure; that their examinations of the specimens which had been taken of the insured‘s aorta had shown definite signs and evidences of degeneration and disease at or near the point of the rupture; and that in their opinions the complete rupture had undoubtedly taken place at one time, with the death of the insured occurring simultaneously with the rupture.
With the facts of the case in mind, we turn now to the remaining assignments of error, which have to do with the admission of certain evidence on the part of plaintiff and the refusal of instructions, peremptory and otherwise, which were requested by defendant.
The first of such points brings into question the propriety of the court‘s action in having permitted plaintiff, over the objection and exception of defendant, to impeach her own witness Block, in the first instance by the introduction in evidence of his prior inconsistent written statements, and again by the testimony of plaintiff herself to the effect that Block had made prior inconsistent oral statements to her.
It will be recalled that Block had been the insured‘s companion on the golf course at the time it is claimed that the latter‘s accidental injury was received, and that in order to assist plaintiff in collecting the accidental death benefits provided by the several policies of insurance which had been carried by the insured he had given her or her attorney some three different statements in writing, purporting to show with more or less certainty that he had seen the insured fall on the seventh fairway. However when his testimony was taken he repudiated the statement that he had actually seen the insured fall,
The point in controversy arose in somewhat of an unusual fashion. Block did not testify in person at the trial of the case, but instead his deposition was read in evidence on the part of plaintiff, and it was at appropriate intervals in the reading of the deposition that plaintiff‘s counsel formally introduced the written statements regarding which Block had been cross-examined at length at the taking of his deposition. Of course, so far as concerned plaintiff‘s own impeaching testimony of which defendant is likewise complaining, that came in the course of her own examination in chief when she was called to the stand after the reading of the deposition had been concluded.
It appears, incidentally, that the deposition had been taken in Cairo, Illinois, where Block resided, more than three years before its use in the trial of the case in the local circuit court. At the outset of his deposition Block had testified that he and the insured had played golf together on the day in question, and then, when asked what had happened while they were playing the nine holes, had answered that “there was nothing unusual that I know, except where we lost our ball.” Upon the pretext of refreshing his recollection plaintiff‘s counsel then asked him pointedly whether he had seen the insured fall, to which his answer was that he had not, but that he had merely seen him straightening himself up “as though he was getting up from the ground.” Fоllowing his denial that he had actually seen the insured fall, plaintiff‘s counsel at once confronted him with his prior inconsistent written statements, and the remainder of his examination was in large part taken up with counsel‘s inquiry and the witness’ explanation as to why he was then repudiating his original version of the facts.
In approaching the question of whether the court erred in permitting plaintiff, at the trial of the case, to impeach Block‘s testimony by proof of his prior contradictory statements, one thing at least is true, and that is that when plaintiff set out to read Block‘s deposition in evidence, she thereby made him her witness so as to place her in the position of vouching for his credibility. It is to be borne in mind that this is in no sense a case where plaintiff was obliged by law to call Block as the only possible witness by whom to prove some formаl matter, but that instead she voluntarily elected to make use of his testimony which she knew was specifically directed to the material issue in the case of whether an accidental injury had been sustained. [State v. Hulbert, 299 Mo. 572, 253 S. W. 764.]
Now the rule is—and we do not understand that counsel are in any disagreement about it—that a party calling a witness will not be allowed to discredit or impeach him by showing that he has
In other words, to warrant the impeachment of one‘s own witness, there must always exist the element of actual, and not mere feigned, surprise at the testimony which the witness gives, and even then only in the event that the testimony is of such an affirmative character as to be favorable to the adverse party, and therefore prejudicial to the party who has been misled or entrapped into calling the witness. [State v. Drummins, 274 Mo. 632, 204 S. W. 271; State v. Bowen, supra; State v. Gregory, 339 Mo. 133, 96 S. W. (2d) 47; 70 C. J. 1034.]
In this instance the question of plaintiff‘s surprise is necessarily to be considered with respect to two very different situations with which she was confronted, the first, her surprise, if any, when Block, at the time his deposition was being taken, refused to testify that he had actually seen the insured fall as he had recited in his previous extrajudicial statements regarding the incident, and the second, her surprise, if any, when her counsel set out to read the deposition in evidencе.
The truth is that if we accord full significance to all the circumstances in the case as related by plaintiff and to which she attributes Block‘s hostility, it is extremely doubtful if she was actually surprised at his testimony even at the time his deposition was taken. It is of interest that the Circuit Court of Appeals likewise saw fit to point out in London Guarantee & Accident Company v. Woelfle, supra, that “it may well be doubted whether the plaintiff could properly claim that she was actually surprised by Block‘s testimony.” Indeed, there is ample basis for the suspicion that the reason she took Block‘s deposition when defendant did not do so was for the purpose of making his inconsistency a matter of record, so that by discrediting his testimony, if she should ultimately be permitted to do so, there might be a situation created whereby the jury, being thus apprised of his repudiation of his previous statements, would be prompted to believe his original version of the facts.
But assuming for the sake of argument that in reliance on Block‘s original statements plaintiff was misled into taking his deposition and was actually surprised at his testimony that he had not seen the insured fall, and taking no account of the fact that his testimony
We gather from plaintiff‘s brief that she recognizes all too well the force of this conclusion, but seeks to avoid it in this case by the insistence that inasmuch as she could not compel Block‘s personal attendance at the trial for the reason that he resided outside the State, then of necessity the taking of his deposition was the equivalent of the hearing of his testimony at the trial. In other words, her theory is that if the element of surprise is actually and legitimately present at the taking of the deposition of a nonresident witness whose attendance at court cannot be compelled as in the case of a witness who resides within the jurisdiction of the court, then the question of surprise must necessarily arise and be determined as of the time of the taking of the deposition of the witness, which means, of course, that in her view of such a situation, the taking of the deposition is to be regarded as part and parcel of the actual trial of the case itself.
We think that this contention on the part of рlaintiff is clearly untenable.
The taking of a deposition is never part of the trial of the cause in which it is taken, but is only a preparatory step designed to obtain or preserve evidence which may subsequently be used at the trial if a situation arises where such evidence is admissible, and either party elects to make use of it. As is pointed out in Dunn v. Dunnaker, supra, the fact that a deposition has been taken and is on file in the cause creates no obligation on the part of the one who has taken it to use it as evidence, and indeed the very statute (
So far as the point now before us is concerned, plaintiff was not obliged to read Block‘s deposition in evidence, but when she did read it, it stood for and took the place of Block himself, and the questions of its competency and of plaintiff‘s right to impeach the witness were therefore to be determined as of the time when the deposition was offered in evidence. [Messimer v. McCrey, 113 Mo. 382, 390, 21 S. W. 17.] For example, had Block himself taken the stand and testified as he did in his deposition, and had plaintiff known when she put him on the stand what she unquestionably knew when she set out to read his deposition, she could obviously not have claimed surprise at the very testimony which under such circumstances she would have known that Block would give. [Baker v. Metropolitan Street Ry. Co., 181 Mo. App. 392, 168 S. W. 842.]
We repeat, therefore, that while plaintiff had the right to take Block‘s deposition upon her compliance with statutory requirements in the case of a witness residing without the State, the taking of the deposition was in no sense a part of the trial of the cause in which it was taken; her subsequent right to use the deposition in evidence was only conditional; and inasmuch as she was not surprised at what it contained, she was not entitled to impeach the witness by any proof of his prior contradictory statements. The only other aspect from which the question is to be considered is whether plaintiff had the right to do what we have no doubt she actually did, that is, take Block‘s deposition so as to have him identify and admit that he had given the prior contradictory statements, and thereby lay a foundation for the subsequent introduction of those statements in evidence as constituting affirmаtive, substantive proof of all the facts therein contained.
While there is some authority to be found in support of this contention —at least where the witness is actually present before the jury so that they may gather the truth from his whole conduct and bearing, even though with respect to contradictory statements he may have made at other times—the decided weight of authority, with which our own controlling decisions are in accord, is to the effect that even where it becomes proper to impeach a witness by proof of his prior contradictory extra-judicial statements, such statements are admissible only for the purpose of his impeachment, and are not to be taken as substantive and affirmative proof of the facts stated therein. [State v. Bowen, supra; State v. Burks, supra; Fesler v. Hunter (Mo. App.), 35 S. W. (2d) 641; Steckel v. Swift & Co. (Mo. App.), 56 S. W. (2d) 806, 808; 70 C. J. 1042, 1153.]
The reason which is given for thus limiting the purpose for which prior extra-judicial statements may be employed is that if they were to be taken as proof of the facts stated therein, the testimony would be hearsay. [Pulitzer v. Chapman, 337 Mo. 298, 85 S. W. (2d) 400.] Of course the ordinary form of hearsay is that which depends for its probative force upon the competency and credibility of some person other than the witness by whom it is sought to produce it, but it is hearsay nevertheless when advantage is sought to be taken of the witness’ own prior extra-judicial statements inconsistent with his testimony on the stand, since in either event the statements, even though admittedly given, were not given under oath and subject to the test of cross-examination. [22 C. J. 206.] So it is that evidence of prior extra-judicial statements of the witness contradictory of his testimony on the stand are admissible only for the purpose of his impeachment, their character as hearsay precluding them from having probative value as independent evidence in the case. [70 C. J. 1062.]
In Pulitzer v. Chapman, supra, our Supreme Court did lay down the rule that so far as concerns the impeachment of a witness by his deposition in the cause, not only may he be empowered by contradictory statements which appear therein, but his contradictory statements may also be accepted as substantive proof of the facts stated so far as they are competent and have probative value. This for the reason that testimony in a deposition is given both under oath and subject to the right of cross-examination, and is therefore not to be characterized as hearsay. However, it is to be noted that the court in its opinion specifically refused to hold that probative value should likewise be accorded to prior extra-judiciаl statements, and we are therefore left to follow the usual rule in such respects, which is that such statements are admissible only for the purpose of impeachment, assuming, of course, that the case is one where the impeachment of the witness is in order, a situation which we have shown did not exist in the instance under consideration.
Plaintiff speaks of defendant‘s duty to have sought an instruction limiting the purpose for which the statements in question were to be considered. As to this proposition, it is enough merely to say that under the facts of this case the statements were not admissible for any purpose, and consequently there was nothing to limit by way of an instruction.
We appreciate the fact that in London Guarantee & Accident Company v. Woelfle, supra, the Circuit Court of Appeals, in passing upon the same question, found that no error had been committed. It is to be observed, however, that in that case the matter was apрroached from the standpoint of plaintiff‘s right to have cross-
So it follows that for the error in having permitted plaintiff to imрeach her witness Block by proof of his prior contradictory extra-judicial statements both written and oral, the judgment rendered cannot stand, and the only question left to be considered is that of whether there is a case to be made for the jury upon the issue of whether the death of the insured resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent, and accidental means.
Disregarding Block‘s original statement that he had actually seen the insured fall, we are nevertheless of the opinion that his admission that he at least saw him straighten himself up “as though he was getting up from the ground,” coupled with the caddy‘s testimony regarding his observance of mud on the insured‘s knickers on the seventh fairway, affords a substantial basis from which the fact of a fall at that point may be legitimately inferred. Cоncededly the evidence did not show the fact of a fall with the certainty that might be wished, but it was as strong and compelling as the circumstances of the particular case permit, and was perhaps no less definite than is to be found in many cases where recovery must depend on circumstantial evidence.
Nor was plaintiff‘s medical evidence unreasonable or unbelievable as defendant would have us hold, but instead its effect was to disclose the scientific possibility of what the actual facts and circumstances of the case tend otherwise to establish. Bearing in mind that the autopsy had revealed but a minute opening through the outer wall of the aorta through which the blood in the very nature of things could have seeped but slowly, and having due regard for the fact that the insured, a man in previous good health, had first begun tо be affected shortly after his fall and had then become steadily and progressively worse until his death occurred on the following Friday, it is no great wonder that the jury chose to accept plaintiff‘s version of the cause of his death.
But defendant insists that a verdict in plaintiff‘s favor could rest only on surmise, speculation, and conjecture in view of the admis-
Now plaintiff‘s burden, so far as this feature of the case is concerned, is only that of establishing by substantial evidence that the rupture of thе insured‘s aorta, resulted from an accidental fall upon the golf course. She is not required, as a part of her burden, to go so far as to exclude the possibility that the injury might conceivably have been received in some manner other than that alleged (Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 616, 20 S. W. (2d) 509, 515; State ex rel. v. Haid, 325 Mo. 107, 119, 28 S. W. (2d) 97, 102); and if it be once assumed that there is substantial evidence to be had from which it may be legitimately inferred that the insured‘s injury did result from an accidental fall on the golf course, then she is not to be denied the right to have her case submitted to the jury unless her own evidence discloses the actual happening of some other occurrence which might as well have caused the injury, in which event a verdict of the jury in her favor would indeed be left to rest upon mere speculation and conjecture.
The fact is, howеver, that regardless of defendant‘s insistence in the matter, there was no evidence to show any other actual occurrence to which the rupture of the insured‘s aorta might be attributed. Conceding that the swinging of a golf club, or any one of numerous other things, if of a character to have produced an unusual force or pressure within the aorta wall, might indeed have brought about the injury, there is this ultimate situation always to be borne in mind, that whereas there was substantial evidence adduced that the insured did fall upon the golf course and that from that very moment on his actions and conduct began to give evidence, growing steadily and progressively more pronounced, that all was not well with him, there was not one word of evidence of any other unusual or violent occurrence on that occasion, nor was there the lеast indication of any injury to the insured until immediately after the fall had been sustained. To the contrary, just as Block himself testified when he was interrogated by plaintiff‘s counsel with respect to what had happened during the afternoon: “There was nothing unusual that I know, except where we lost our ball.”
So we conclude, despite defendant‘s earnest insistence to the contrary, that the case is one for the jury to determine upon the evidence and the legitimate inferences to be drawn therefrom.
Other matters assigned as error and not referred to herein may not appear upon a retrial of the case.
PER CURIAM: The foregoing opinion of Bennick, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, reversed and the cause remanded. Hostetter, P. J., and Becker and McCullen, JJ., concur.