Greenlee v. Kansas City Casualty Co.

Decision Date17 January 1916
PartiesMARGARET M. GREENLEE, Respondent, v. KANSAS CITY CASUALTY COMPANY, Appellant
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. Harris Robinson, Judge.

AFFIRMED.

Judgment affirmed.

McCune Harding, Brown & Murphy for appellant.

Boyle & Howell and Jos. S. Brooks for respondent.

OPINION

TRIMBLE, J.

--Plaintiff, as the beneficiary in an accident insurance policy held by her deceased husband, sued to recover the indemnity therein agreed to be paid in the event of insured's death by accidental means. She obtained judgment, and the defendant has appealed.

The policy insured "against the effects of bodily injuries caused directly, solely and independently of all other causes by accidental means, which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly by any disease, defect or infirmity."

The answer set up the defense that the insured did not die from bodily injuries caused directly, solely and independently of all other causes by accidental means, but that his death was caused wholly or in part directly or indirectly by disease. The controversy, therefore, involves not only whether the insured's death was caused by an accident but also the meaning of the policy as to the extent of the liability created by it. Plaintiff claims that about three o'clock in the morning of April 12, 1912, the insured accidently slipped and fell in the bathroom of his residence striking his head on the sharp corner of the marble wash basin and that he thereafter died from the direct results and effects of said accidental injury. Defendant's position may be stated thus: First. That insured's fall was not an accident but was the result of epidemic cerebro-spinal meningitis then attacking him and that he died from the effects of said disease. Second. That even if the fall was purely an accident, insured did not die as a result of the fall but from an attack of meningitis. Third. That even though the fall was purely accidental and even though the fall was the inducing or predisposing cause of the meningitis nevertheless, as the insured died of the disease and not solely from the effects of the fall or independently of the disease, still plaintiff could not recover for the reason that the policy by its terms did not create a liability extending that far.

The insured was forty-three years of age, a practicing dentist of some twenty years standing, and, at the time of his death, had his office in the business section of Kansas City and his home in a residence district thereof. On the morning of the 11th of April, the day preceding the night of his fall, he ate breakfast with his family and left home for his office at the usual time and was in his usual good health. He was engaged all day in his profession at his office, and during the day talked to his wife over the telephone. He came home at the usual hour, about 6 o'clock in the evening, and was in good health, cheerful in disposition, strong, vigorous, and perfectly normal in manner and appearance. About nine-thirty or ten o'clock that night he went to bed as usual. He and plaintiff occupied the same bed and he slept well without being nervous or restless. About three in the morning he got out of bed and went to the bathroom, a distance of about twenty-five or thirty feet. His wife spoke to him and he answered and said he was going to the bathroom but, upon objection by the defendant that this answer was "incompetent, irrelevant and immaterial" it was stricken out. There was a light in the hall leading to the bathroom, and as her husband passed into the hall on his way thither, plaintiff glanced at her husband. He was perfectly normal in appearance, conduct and walk. Plaintiff noticed nothing in him unusual or different from that of other occasions, for he sometimes got up at night and went to the toilet. In about the time it would take him to reach the bathroom, plaintiff heard a heavy fall and a moan from her husband. He was a large man weighing over two hundred pounds. The wife instantly sprang out of bed and ran to the bathroom. Her husband was lying on the floor with his head near the corner of the marble basin. He was bleeding profusely from a wound on his head and his night clothes around his shoulders were saturated with blood. He did not get up but lay there moaning and groaning. On reaching the bathroom plaintiff exclaimed "What's the matter?" and her husband said "I slipped and fell." The floor of the bathroom was covered with linoleum and on this was a short rug in front of the basin and just inside the bathroom door. This rug was in its usual and proper position when Mrs. Greenlee retired that night but when she found her husband on the floor the rug was pushed to one side and crumpled, and there was water on the floor. On the corner of the basin was some blood and a few strands of hair. A nickel plated rack on which towels were hung, and which was fastened to the wall and in its proper position when they retired in the evening, was partly pulled down and twisted.

The insured's mother and brother, who was a physician, also lived in the house and they heard the fall and reached the bathroom almost immediately after his wife did.

Insured was unable to rise and they picked him up and put him to bed. He was still bleeding from a wound about an inch or an inch and a half long located above and a little to the back of the left ear. He appeared to be dazed and was suffering great pain in his head and moaning. His brother washed and dressed his wound and administered a hypodermic injection of morphine to alleviate the pain. About an hour or possibly longer after his fall, insured had a spasm or convulsion consisting of a more or less contraction or twitching of the muscles and of the skin, lasting not more than a minute if that long. In half an hour after he was placed in bed he lapsed into unconsciousness, but whether this was or was not the effects of the morphine injection is not shown. At times thereafter he seemed to be conscious but afterwards again became unconscious, and during the periods of apparent consciousness was unable to talk rationally or coherently. When morning came he was resting quietly. He remained in bed throughout the day of the 12th in very much the same condition as above described except that he did not rest quietly but suffered pain. On the morning of the 13th he seemed to be resting but later in the forenoon of that day he grew much worse. His brother was sent for and on the way home he called Dr. Tesson and after the two arrived, the insured had another convulsion, consisting of a twitching and contracting of the muscles and possibly a drawing up of the limbs, which passed away in a very short time. He was unconscious and the physicians decided to remove him at once to the hospital. They placed him in an automobile and started. On the way thither, the insured, who was seated between the two physicians, was attacked by a third convulsion in which he suddenly straightened himself out and died. This occurred about one-thirty p. m. of the 13th. His death, therefore, resulted in a little less than thirty-six hours after his fall.

Defendant's demurrer to the evidence, which it now insists should have been sustained, raises the question whether plaintiff made a sufficient case to go to the jury. That is, was there evidence tending to show that the insured's fall was accidental and that his death resulted therefrom. Before considering this question, however, it is necessary to pass upon the objections to some of the evidence offered by plaintiff to show that the fall was an accident.

It is insisted that the insured's statement, "I slipped and fell," made in response to his wife's exclamation, "What's the matter?" was not a part of the res gestae and was therefore inadmissible. We are of the opinion that it was a part of the res gestae. The declaration of the deceased was practically coincident in point of time with the main fact to be proved. Mrs. Greenlee heard the fall and reached her husband in the momentary interval it took to leap from her bed and run the short distance to the bathroom. Seeing husband upon the floor with blood streaming from a wound in his head, she exclaimed, "What's the matter?" and he replies, "I slipped and fell." Everything that transpired formed one continuous transaction, and the insured's statement was a part thereof. It was so nearly contemporaneous with the main fact under consideration, and was so clearly connected with it, that in the ordinary course of affairs it could be said to be the spontaneous exclamation of the real cause and was a verbal act constituting a part of, and illustrating, said main fact. It, therefore, meets the tests laid down by the authorities as necessary to bring it within the res gestae. [1 Greenleaf on Ev. (16 Ed.), sec. 108; 2 Taylor on Ev. (9 Ed.), sec. 588; Leahey v. Fair Grounds Railway Co., 97 Mo. 165, l. c. 172; Lund v. Inhabitants of Tyngsborough, 9 Cush. 36, l. c. 42; Insurance Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437; Harriman v. Stowe, 57 Mo. 93; Entwhistle v. Feighner, 60 Mo. 214.] Nor does the fact that insured's wife exclaimed "what's the matter" deprive the statement of its spontaneity or make it a mere narrative of a past transaction. The heavy fall, the rush of the wife to the bathroom, the sight of her bleeding husband upon the floor, the exclamation of the wife and the statement of the husband in explanation of his situation are all so intimately connected and so natural and made under the nervous excitement and stress of the moment as to wholly differentiate it from those instances where, after the lapse of time, there has been opportunity for the mind to...

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