Benefit Ass'n of Railway Employees v. Armbruster

• Decision Date: 10 March 1932
• Docket Number: 6 Div. 910.
• Citation: 224 Ala. 302,140 So. 356
• Court: Alabama Supreme Court
• Parties: BENEFIT ASS'N OF RY. EMPLOYEES v. ARMBRUSTER.

140 So. 356

224 Ala. 302

BENEFIT ASS'N OF RY. EMPLOYEES v. ARMBRUSTER.

6 Div. 910.

Supreme Court of Alabama

March 10, 1932

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action on a policy of accident insurance by Hattie Armbruster against the Benefit Association of Railway Employees. From a judgment for plaintiff, defendant appeals.

Affirmed.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellant.

Black &amp Fort, G. Ernest Jones, and J. C. Burton, all of Birmingham for appellee.

BOULDIN J.

The action is to recover the death benefit under an accident insurance policy.

This is the third appeal. Former decisions appear in Benefit Ass'n of Ry. Employees v. Armbruster, 217 Ala. 282, 116 So. 164, 166, and Benefit Ass'n of Ry. Employees v. Armbruster, 221 Ala. 399, 129 So. 78.

Dealing with questions raised on the present appeal in the order presented in appellant's brief, we are asked to depart from our former holdings sustaining the refusal of the affirmative charge requested by defendant.

As pointed out on first appeal, supra, the policy insures against "loss resulting directly and exclusively of all other causes, from bodily injury sustained *** solely through external, violent and accidental means," and does not contain the clause considered in some cases, excluding liability "where death has resulted wholly or in part, directly or indirectly, from disease or bodily infirmity."

Following our own case of Standard Accident Ins. Co. v. Hoehn, 215 Ala. 109, 110 So. 7, 9, which in turn approved the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L. R. A. (N. S.) 493, we held: "Where accidental injury aggravated a disease, and thereby hastened death so as to cause it to occur at an earlier period than it would have occurred but for the accident, it is the direct, independent, and exclusive cause of death at that time."

The point is now made that, if we adhere to the rule thus stated, it should be limited to cases of lingering disease where death results from an accident which would not have produced death at the time but for the weakened state of the insured from disease.

Admittedly plaintiff was suffering from acute appendicitis at the time. We may say the evidence without dispute, shows he had an abscessed appendix at the time of the accident, and liability is predicated on external violent and accidental injury causing a rupture and leading to the escape of pus into the abdominal cavity, resulting in general peritonitis, and so causing death at the time death did occur.

We can see no logical reason for drawing a distinction between a chronic and an acute disease. The basis of the doctrine, proximate cause of death, forbids such distinction.

We adhere to our former holding that the rule stated applies to the case in hand, and the affirmative charge was properly refused.

In the same connection, appellant strongly insists, that the weight of the evidence does not sustain the verdict, that the great weight of the dependable evidence is so clearly opposed to the verdict, that this court should reverse the trial court for denial of the motion for a new trial.

We have carefully studied the record, with the aid of briefs, and are not clearly convinced that this, a third verdict for plaintiff, and sustained by the trial court, should be disturbed.

To adequately review and discuss the evidence would consume much time and space, without serving any good purpose. We merely note that three main issues are presented in the evidence and argued in brief on this line:

First, that no accident occurred as testified to by plaintiff's witnesses.

Second, that, if it did, no rupture could occur from that kind of accident.

Third, as a fact no rupture of the abcessed or walled-in condition of the gangrenous appendix had occurred; that this was disclosed when the operation was performed several hours after the alleged accident.

The solution of the first insistence turns on the direct evidence of eyewitnesses seen and heard by the jury. Despite infirmities fully presented to the jury, we see no sufficient reason to disregard their finding as to the fact of such accident.

The second turns on both direct and expert opinion evidence-direct evidence that, by the violent jerking or bucking of the ambulance in which the patient was being removed from his home to the hospital, his attending physician was thrown from the stool where he was sitting and the patient partially thrown from the cot in a manner demonstrated before the jury; and further direct evidence of sudden pallor and weakness indicating shock, followed by surcease of the acute pain suffered from the enlarged appendical abscess up to that time.

Aside from the opinion evidence of Dr. Cocciola, the family physician, that a rupture did occur, other opinion evidence goes to the effect that a rupture of the abscessed or walled-in condition of the appendix found to be in a gangrenous condition when removed some hours later might have resulted, and was indicated by a disappearance of pain, a symptom accompanying a rupture permitting the escape of pent-up pus.

Not overlooking the conflict in evidence touching this symptom on arrival at the hospital and later, these matters were for the solution of the jury.

It seems the main insistence is the third above noted. This contention that the operation disclosed as a fact that there was no rupture permitting...