Hooper v. Standard Life & Accident Insurance Co.
| Decision Date | 03 June 1912 |
| Parties | MARY C. HOOPER, Appellant, v. STANDARD LIFE & ACCIDENT INSURANCE CO., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Fyke & Snider for appellant.
Warner Dean, McLeod & Timmonds for respondent.
Plaintiff is the widow of William H. Hooper, who died on the 31st of March, 1909. He left what is known as an accident policy, issued to him by the defendant company, for the sum of two thousand dollars, payable to plaintiff. She brought this action alleging the death to have resulted from an accident. The death was not disputed, but defendant denied it was caused by an accident. The judgment in the trial court was for the defendant.
It appears that deceased who, at his death was about fifty-five years of age, was a large man, weighing more than two hundred pounds, and in appearance was robust, strong and healthy. But, as shown by post-mortem examination, he was, in fact diseased in brain, heart and arteries, and the immediate cause of his death was cerebral hemorrhage.
He was an employee in a large mercantile establishment in Kansas City, and on the evening of the 23rd of March, 1909, about dark, was riding to his home in a street car which passed his house at Twenty-Seventh street and Brooklyn avenue. As the car came near to the corner, and while yet in motion, he got up from his seat, presumably to alight, when he either sank or fell to the floor. Passengers came to his assistance, helped him from the car and carried him into his house and laid him on a sofa. He lingered about a week, when he died on the 31st as stated. The passenger who first went to his assistance spoke to him and he did not answer. He could not walk, but as they got to the door of the car with him he said he could not use one of his legs.
Plaintiff's position is that he accidentally fell in the car, whereby he ruptured a blood vessel in the brain and thereby died. Defendant insists there was no accident, but that deceased was suddenly stricken with apoplexy, whereby he sank to the floor of the car, and thereafter died from natural cause.
Notwithstanding Hooper was fatally diseased in heart and brain, and notwithstanding his death was from apoplexy, yet if he accidentally fell in the car and ruptured a blood vessel, which caused the apoplectic stroke, his death would be accounted as accidental. For, if a man is so afflicted that he will die from such affliction, within a few hours, yet if by some accidental means his death is caused sooner, it would be a death from accident.
It was therefore an important question of fact whether he accidentally fell in the car, thereby causing a rupture of a blood vessel, whereby apoplexy resulted. There was evidence tending to prove a rough or sunken place in the street railway track at the point where he was seen to arise from his seat in the car, which caused it to "lurch" in passing over, and there was evidence that he fell down, as distinguished from sinking down, that he fell across the aisle striking a seat on the opposite side. His arm was hurt at the elbow and showed a bruised place, which gave him pain. In this condition of the case, there was an offer of proof by plaintiff, as a witness in her own behalf, as a part of the res gestae, that after deceased had been carried into his house and laid on the sofa and "within thirty minutes after the occurrence in the car, he complained of his arm hurting him, and stated that he fell in the car and hurt his arm." On defendant's objection, the offer was refused by the court.
The whole of what happens or transpires, that is, the res gestae, does not always appear to the eyes of witnesses. Sometimes words spoken by an actor in the transaction during its performance are a part of it and serve to explain it. When an act is immediately accompanied with the words, it is easy to see that it takes both to make up the whole res gestae. It is when there is appreciable time between the thing which has happened and the words which are spoken of it, that difficulty has arisen. The thing to avoid is the allowance of a made-up or a colored or highly exaggerated story; for, ordinarily, what a man says in his own favor ought not to be allowed as evidence against his adversary. With this in view, courts have not always allowed the matter of a short time intervening to prevent what one has said of an occurrence being received in evidence, where the circumstances connect the two and also show fabrication to be highly improbable. In a leading case in this state, which seems not to have been questioned, it is said by WAGNER, J., that: "Where a declaration is made by a deceased person cotemporaneously, or nearly so, with a main event, by whose consequence it is alleged he died, as to the cause of that event, though generally the declarations must be cotemporaneous with the event, yet where there are any connecting circumstances, they may, even when made some time afterward, form a part of the whole res gestae." [Brownell v. Pacific Ry. Co., 47 Mo. 239.]
In that case the time of Brownell's declaration is not given any more definitely than as "shortly after the accident," and again as "immediately after the accident, when Brownell was restored to consciousness." In State v. Gabriel, 88 Mo. 631, 639, it is said that there are "no limits of time within which the res gestae can be arbitrarily confined," and that "they vary in fact with each particular case." And again, that even though...
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