Bankers Life Co. v. Nelson

Decision Date31 December 1940
Docket Number2160
Citation56 Wyo. 243,108 P.2d 584
PartiesBANKERS LIFE CO. v. NELSON
CourtWyoming Supreme Court

ERROR to the District Court; C. D. MURANE, Judge.

Action by May M. Nelson against the Bankers Life Company to recover on a life policy issued on the life of plaintiff's deceased husband, and containing a "double indemnity" provision. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

For the plaintiff in error, there was a brief by Hagens & Wehrli of Casper, and oral argument by G. R. Hagens.

The burden was upon plaintiff to prove the accident and that death was solely effected thereby, independently of all other causes, and also that the accident was not brought about by physical or mental infirmities, where such causes are excepted from coverage of the policy. New York Life Ins Co. v. Ross, 30 F.2d 80; New York Life Ins. Co. v Roufos, 83 F.2d 620; Brown v. Maryland Cas Co., 55 F.2d 159; Michener v. Fidelity & Cas. Co., 203 N.W. 14; Association v. Shryock, 73 F. 774; Phillips v. Travelers Ins. Co. (Mo.) 231 S.W. 947; Association v. Supply Co. (Ala.) 99 So. 787; Kellner v. Travelers Ins. Co., 181 P. 61; Ogilvie v. Life Ins. Co., 209 P. 26. The evidence in this case failed to comply with the above requirements. The statement: "I believe I have ruptured myself on that engine," is pure hearsay and not part of the res gestae. It was a mere narrative of a past event without probative value. 22 C. J. 451; 22 C. J. 469; Bolton v. Columbia Casualty Co., 130 S.E. 535; Salas v. People, 118 P. 992; McMahon v. Mfg. Co. (Pa.) 164 A. 850; Zion's Inst. v. Industrial Comm. (Utah) 262 P. 99; Lallier Co. v. Industrial Comm., 17 P.2d 533; Creech v. Ry. Co. (Ohio) 153 N.E. 299. The court erred in submitting the case to the jury at all and likewise committed error in refusing to grant the motion for a new trial. The disease or physical infirmity known as acute cardiac dilatation, or heart disease, was not the proximate cause of death and there was therefore no liability under the terms of the policy. Railway Mail Ass'n. v. Weir (Ohio) 156 N.E. 921; Cretney v. Accident Co. (Wisc.) 62 A. L. R. 675; Ackerman v. Ass'n. (Minn.) 239 N.W. 229; Sullivan v. Metropolitan Life Ins. Co. (Mont.) 29 P.2d 1045; Seipel v. Ins. Co., 59 F.2d 544; Korff v. Ins. Co., 83 F.2d 45. Defendant objected to instruction No. 7, on the ground that there was no competent evidence to warrant the jury in finding that decedent received a hernia by reason of external, violent or accidental means, or that the operation had anything to do with the resultant death of the decedent. The court erred in giving instruction No. 3 and in overruling defendant's motion for a directed verdict at the conclusion of the whole case. The burden of proof was upon plaintiff to show that an accident had occurred and that the hernia was produced through external, violent and accidental means, and that death was effected solely thereby, independently of all other causes, and that death did not result from physical or mental infirmity. Plaintiff failed to sustain the burden of proof. The judgment of the lower court should be reversed.

For the defendant in error, there was a brief and oral argument by R. R. Rose of Casper.

The burden of proof is upon the defendant to show that decedent died as the result of disease or infirmity. Joyce on Law of Insurance, Sec. 3796A; Fetter v. Fidelity and Cas. Co., 61 L. R. A. 459; Woodmen of America v. Noyes, 64 N.E. 21; Hall v. Accident Corp., 85 S.E. 600; Association v. Rippey, 181 Ind. 454, 50 L. R. A. (N. S.) 1006. The statement made by decedent Nelson "I believe I have ruptured myself on that engine" was properly admitted. 22 C. J. 452, 454, 461, 462, 465, 467 and 469; Wheeler v. O. R. & N. Co. (Idaho) 102 P. 347; Boone v. Transit Co. (Cal.) 73 P. 243. The hernia with the operation properly performed in an effort to repair the condition was the proximate cause of death. Equitable Society v. Gratiot, 45 Wyo. 1; Runyon v. Casualty Co. (N. J.) 154 A. 397; Continental Cas. Co. v. Lloyd, 73 N.E. 824; Silverstein v. Metropolitan Life Ins. Co. (N. Y.) 171 N.E. 914; Freeman v. Association (Mass.) 30 N.E. 1013; Moon v. United Commercial Travelers, 52 L. R. A. (N. S.) 1203; Wheeler v. Cas. Co. (Mo.) 251 S.W. 924; U. S. F. & G. Co. v. Hood, 15 A. L. R. 605; Horsfall v. Pacific Mutual Life Ins. Co., 63 L. R. A. 425; Ballam v. Metropolitan Life Ins. Co., 108 A. L. R. 1. Where the question involved is as to what was the proximate cause of an injury the question is to be determined by a jury. Patterson v. Corp., 25 App. D. C. 46; Hall v. Accident Corp., 85 S.E. 600; Beile v. Ass'n., 135 S.W. 497; Equitable Life Assur. Soc. v. Gratiot, 45 Wyo. 1, 14 P.2d 438; Fidelity Company v. Meyer, 44 L. R. A. (N. S.) 493; U. S. F. & G. Co. v. Hood, 15 A. L. R. 605. Plaintiff seeking to recover the double indemnity payable under a life insurance policy in case of accidental death is not bound by the testimony of medical witnesses on the question whether bodily infirmity or sickness is the contributing cause of death. Ballan v. Metropolitan Life Ins. Co. (Mass.) 108 A. L. R. 1; Joyce on Insurance, Sec. 3813; Denver Life Ins. Co. v. Price, 69 P. 313; A. G. & L. Ins. Co. v. Hymes, 8 A. L. R. 318; Reserve Loan Life Ins. Co. v. Isom, 173 P. 841. Instruction No. 3 given by the Court was a proper instruction. Driskell v. U. S. Health and Accident Ins. Co., 93 S.W. 880. Instruction No. 7 given by the Court correctly states the law as applied to the case.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This proceeding in error was brought by the unsuccessful party below to review a judgment of the district court of Natrona County in favor of the plaintiff in an action wherein May M. Nelson was plaintiff and the Bankers Life Company, a corporation, was defendant. For brevity's sake the parties will be hereinafter referred to as aligned in the trial court or by their respective names. The trial was conducted in the court aforesaid with a jury in attendance and that body rendered a verdict upon which the judgment in question was based.

In view of the points argued here, the facts and proofs which may properly be recited and considered at this time and which were before the district court are substantially as hereinafter detailed. These points involve the liability of the defendant upon a life insurance policy issued upon the life of plaintiff's husband, George Nelson, and containing a so-called "double indemnity" provision in that instrument operative in favor of the plaintiff under certain circumstances. These pertinent double indemnity clauses of the policy read as follows:

"Upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, * * * * the Bankers Life Company agrees to pay double the amount called for in the first paragraph, Page 1 of this Policy.

"This Double Indemnity Benefit will not apply if the Insured's death resulted from * * * * physical or mental infirmity, or directly or indirectly from disease of any kind."

George Nelson was employed by an oil company to run a twenty-five horse power gas engine, which operated a pump in connection with the extraction of crude oil from oil wells. This engine was a two cycle device, i. e., it fired every other stroke and in order to start it, the large flywheel thereon had to be rocked back and forth by the employee in charge until the ignition spark caught the gas used for engine fuel and caused the machine to function. This starting operation was not easy, due to the effort required to move the large flywheel back and forth, and in cold weather especially the task was frequently an extremely difficult one. The operator was obliged to use both his hands and feet to rock the wheel back and forth, which was done, as one witness explained, "by climbing on the spokes on either side of the flywheel," and that in cold weather "if real lucky" he could get it going in ten minutes; other times it would take an hour.

In the course of plaintiff's testimony, on direct examination, she stated in substance that she and her husband lived in a house very close to the pump-house where the engine was located--something like a hundred feet distant; that previous to December 14, 1938, Nelson had always had excellent health and was a strong, robust man; that on the date last mentioned the weather was quite cold and there was no fire in the engine-house; that on that date the timing gear that caused the engine to fire was worn and that in consequence the machine would kick back when her husband was not expecting it and it was very dangerous to start operating; that he usually worked eight hours commencing about seven o'clock in the morning, but on December 14, 1938, he worked over time in his efforts to start and keep the engine going; that he finally came to the house after four P. M., removed some of his clothing, saying "I believe I have ruptured myself on that engine"; that he showed her the rupture; that she saw it as a raised spot on the left side of his abdomen "about half the size of a walnut"; that until that time there was no hernia there and that her husband never wore a truss.

On cross-examination she stated among other things that she "based" her "version of the matter" on what she could see and "it hurting him after he got it"; that the engine was not operating properly on the 14th day of December, 1938; that he, Nelson, had been having trouble with the device all that day; that she went to the engine house two or three times during the course of the day to find out what the trouble was--"why it was stopping so often" that Nelson...

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