Aldine Trust Co. v. National Ben. Accident Ass'n
| Decision Date | 31 July 1936 |
| Docket Number | 43232. |
| Citation | 268 N.W. 507,222 Iowa 20 |
| Parties | ALDINE TRUST CO. et al. v. NATIONAL BEN. ACCIDENT ASS'N. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Action to recover on two policies of accident insurance. Verdict and judgment for defendant insurance company. Plaintiffs appeal.
Reversed and remanded.
Brammer, Brody, Charlton & Parker, of Des Moines, for appellants.
Parrish, Cohen, Guthrie & Watters, of Des Moines, for appellee.
The plaintiffs are executors of the estate of Ross Hall Skillern deceased. In his lifetime Skillern took out two policies of accident insurance with the defendant company, each in the sum of $5,000, one of which policies was issued July 2, 1930, being No. B. P. 100921, and the other being No. BP 100955, issued July 14, 1930, and each making the estate of the insured the beneficiary. The insuring clause in each policy was as follows: " Does hereby insure Ross Hall Skillern (hereinafter called the Insured) under classification A, by occupation Physician against loss or disability as herein defined, resulting solely from bodily injury (independently and exclusively of disease, whether disease preexists or be thereafter contracted) and effected solely through external, violent and accidental means," etc.
The insured died September 20, 1930. Proofs of death were filed within proper time, and suit was brought on each policy June 24, 1931. The petition was in two counts, each count containing the date of death and the injuries from which death resulted as sustained on steamship Baltic en route from Liverpool to New York September 11, 1930; that the injuries were fracture of the third, fourth, fifth, and sixth ribs in the midaxillary line on the left side, causing intracranial fat embolus, or blood clot, from which death resulted.
The answer to the petition was a general denial, but defendant admitted the issuance of the policies as set out in the petition, and pleaded further: " For further answer the defendant denies that the death of the insured resulted solely from bodily injuries effected through external, violent and accidental means and alleges the fact to be that the said Ross Hall Skillern did not die as a result of an accident." And defendant admitted that due proof of loss was furnished within the time required by the terms of the policies.
So under the issues in this case it is not only incumbent on plaintiff to show that the decedent met with an accident fracturing several ribs, claimed to have been fractured, but in addition to show that subsequently death took place and was caused by an intracranial fat embolus, or blood clot, which resulted from the accident, for under the policy or contract of insurance it must have resulted " solely from bodily injury (independently and exclusively of disease, whether disease preexists or be thereafter contracted) and effected solely through external, violent and accidental means."
Ross Hall Skillern, the injured, was a physician about 54 years of age, practicing in Philadelphia, Pa., and he took out the policies a short time before he and his wife, one of the plaintiffs herein, started on a trip to Europe in 1930, and from which they started to return September 6, 1930. While on the return trip on the steamer Baltic, the doctor and his wife took breakfast together September 11th, and left the dining room about 10 a. m., he going toward the deck and she to their stateroom, where she remained about a half hour, then she went to the deck, but, noticing it was slippery, she went to the salon and read. She did not see the doctor until about 12 o'clock noon, or about two hours after leaving him. She found him lying on the bed, on his back, with pillows under his left side, with his coat off, and looking very white, and his face showed suffering; the whiteness continuing for some time. During the remainder of the voyage Dr. Skillern took no exercise, but spent his time in the stateroom or in his deck chair. Following September 11th he used more pillows on his bed, and they were placed under his left side. During that time he would groan every time he moved. He would frequently complain of pains when dressing, or when raising his left arm, and said the pain was in his left side. So far as Mrs. Skillern knew, previous to that morning, the doctor did not have pain in his left side, and when she left him that morning of September 11th his color was natural, not white or pale.
During the taking of testimony the following took place:
" Q. When you first saw Dr. Skillern in his stateroom about 12 o'clock, or noon of September 11, 1930, what, if anything, did he say to you?
Mr. Guthrie: Objected to as incompetent, irrelevant and immaterial, and not part of the res gestæ, calling for hearsay testimony.
Mr. Brammer: We are offering this testimony as a part of the res gestæ .
The Court: I am going to sustain the objection at this time. (Plaintiffs except.)
Mr. Brammer: Plaintiffs at this time offer to prove by the witness Eliza P. Skillern, if permitted to do so, that about 12 o'clock on September 11, 1930, Mrs. Skillern saw her husband in his stateroom aboard the steamship Baltic; that as soon as she saw him at that time he said to her, ‘ I slipped and fell on the deck and have a terrible pain in my left side.’
Mr. Guthrie: To which offer the defendant makes all the objections heretofore made when the question was propounded, and which was ruled upon by the court for the reason that the same is incompetent, irrelevant and immaterial, and for the further reason that it is not a part of the res gestæ, nor does it tend to prove the res gestæ, nor is it competent as a part of the res gestæ .
The Court: The objection will be sustained at this time. (Plaintiffs except.)"
We have had something to say heretofore in reference to the rule of res gestæ in Califore v. Chicago, St. Paul, M. & O. Ry. Co., 220 Iowa 676, 263 N.W. 29. Califore, the plaintiff's decedent, made declarations shortly after his injury, and they were held admissible as substantial evidence as a part of the res gestæ . In Stukas v. Warfield-Pratt-Howell Co., 188 Iowa 878, 175 N.W. 81, 84, one Stukas was injured in an elevator, and suit was brought by his administrator for death resulting from the injury. When the deceased was found, his eyes were bulged out of his head and real bloodshot, and he was unconscious. He was taken to the hospital, where he said of the operator of the elevator, the " son of a bitch" would not stop the elevator when he hollered. Others heard him. On his wife's arrival at the hospital, he said to her that he got his foot caught in the elevator and the elevator man would not stop, but went right on. In the Stukas Case the court said:
Hinnah v. Seaba, 193 Iowa 1206, 188 N.W. 909, lays down the rule that statements relative to what took place at an encounter, even though made in response to nonleading questions, are admissible as part of the res gestæ, when made at a time and place and under such circumstances as to preclude the idea of sinister motive, when they are such as to afford a reasonable or reliable explanation of the encounter. In this case something like an hour elapsed between the occurrence and the statements in question.
Vernon v. Iowa State Trav. Men's Ass'n, 158 Iowa 597, 138 N.W. 696, 698, where the plaintiff brought suit on a certificate of accident insurance, she was permitted over defendant's objection to prove that, while she and her husband were at the sanitarium, the husband went to take a bath, and upon his return he exhibited to her one of his limbs which bore an abrasion of the skin. He exclaimed to his wife, " I want to show you how rough that damn fool was with me in the bathroom." The court said this was properly res gestæ of the transaction, and there was no error in overruling defendant's objection.
Rothrock v. Cedar Rapids, 128 Iowa 252, 103 N.W. 475, 476, says that the declarations of one injured as the result of a fall on a defective sidewalk, as to the manner of the fall and the place at which the injury was sustained, which were made within thirty minutes after its occurrence and while suffering therefrom, are admissible as res gestæ . The statements were offered in a deposition of a daughter, but the answers of the deposition as relating to the declarations were stricken out on defendant's motion, and the daughter was not allowed to testify thereto. The plaintiff made an offer to prove the deceased made declarations, which was overruled.
The court said: ...
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