Budde v. Nat'l Travelers' Ben. Ass'n

• Decision Date: 14 December 1918
• Docket Number: No. 32360.,32360.
• Parties: BUDDE v. NATIONAL TRAVELERS' BEN. ASS'N.
• Court: Iowa Supreme Court

184 Iowa 1219

169 N.W. 766

BUDDE

v.NATIONAL TRAVELERS' BEN. ASS'N.

No. 32360.

Supreme Court of Iowa.

Dec. 14, 1918.

Appeal from District Court, Jackson County; A. P. Barker, Judge.

Action for indemnity on a life insurance policy resulted in a directed verdict for the defendant and judgment thereon. Plaintiff appeals. Reversed.

Salinger, J., dissenting.J. C. Campbell, of Bellevue, and Wolfe & Wolfe, of Clinton, for appellant.

F. D. Kelsey, of Maquoketa, and Carr, Carr & Evans, of Des Moines, for appellee.

LADD, J.

A policy insuring Elmer F. Budde against “loss of life, limb, sight, and time, resulted from bodily injury (hereinafter called such injuries), effected directly and independently of all other causes through external, violent, and accidental means,” was issued by the defendant, October 12, 1914. In event of accidental death the indemnity stipulated was $2,000. On May 30, 1916, the assured was engaged in removing ashes from a cellar in Bellevue, when he became ill, and died August 15th following. One Steil placed the ashes in a metal washtub, and lifted it to the cellar window, from which Budde carried it to a wagon, into which he emptied the ashes. The petition alleged that in the course of this work it became necessary to move the wagon closer to the sidewalk, and that while lifting or pulling one of the wheels deceased was injured by reason of a sudden shift of the weight of the wagon, and that this subjected him to an unexpected strain, which directly and independently of all other causes, produced an abscess of the pancreas and peritonitis, resulting in death. It also alleged that the ground was rough and muddy, elevated a foot above the grade of the sidewalk; that in carrying the ashes the tub rested against deceased's abdomen, and in passing over the wet and slippery ground he slipped and strained himself, producing an abscess of the pancreas, which resulted in peritoneal inflammation and death. Again, the petition charged that in carrying it the tub of ashes pressed against his abdomen, and that while crossing the rough, muddy ground the assured felt a sudden pain in his abdomen, and was compelled to quit work, and “as result of said strain, directly and independently of all other causes,” he sustained an injury such as previously mentioned. These allegations were put in issue, and the main controversy is whether the evidence was sufficient to carry the cause to the jury. The appellee does not argue the case solely with reference to the pleadings, but only as to whether the evidence was sufficient to make out a case for the jury.

The deceased previously to May 30, 1916, had enjoyed good health, and had worked in a livery barn and generally at manual labor about town. On that day he was engaged with one Steil in moving ashes as stated. The ashes were carried in a two-bushel washtub. After a few tubs of ashes had been removed it was thought the wagon was not close enough to the sidewalk, and the two took hold of the wheels, Budde the wheel nearest the sidewalk, and slid it over. This was easily done, as the lawn was newly made and slippery. Two planks were then so placed as to extend from the sidewalk to the reach, so that Budde could walk up them to empty the ashes in the wagon, and he carried the tub, having two handles, resting against his stomach. Some time during the forenoon he complained that the tubs were being loaded too heavily, and thereafter Steil placed about 100 pounds of ashes in each instead of 150 pounds, as he had been doing. The work was completed at 12 o'clock, and together they walked away to dinner. A brother of deceased saw him lying on a lounge about 20 minutes later, with his hands over the pit of his stomach, “very pale, and as though in great pain,” and saying that he did not care for dinner. Steil met him at about 1 o'clock p. m., when he appeared pale, “like he was sick,” and holding his hand over the pit of his stomach. He suffered pain in his right side for some weeks, gradually growing worse.

On the same day, at about 8 o'clock in the evening, he consulted Dr. Hanske, when, according to the doctor, he complained of pain in his abdomen, showed some prostration, and, on examination, it was found that he had “a little discoloration over the central portion of the abdomen.” There was continuous rigidity of the muscles, muscular spasms, and the pulse was accelerated, and a very slight rise of temperature. The doctor treated him up to the time of his death primarily “for an injury which later resulted in what he supposed and by diagnosis was septicemia. Septicemia is a condition applied to invasion of microbic or bacterial elements into the blood tissue, without any visible foci of operation.” The pain was continuous, though not apparently localized; there was general rigidity of the abdomen. The treatment was “rest and palliative treatment through slight stimulation and liquid foods, regulating of diet, and in a general way used cold applications.” The condition“was obscure, and we allowed him to suffer, hoping that some symptoms might become localized and show themselves.” Narcotics were resorted to during the last two weeks of his illness. “Q. Basing your answer on your previous knowledge of Mr. Budde's physical condition, and the fact that he had septicemia, what would you say was the cause of that septicemia--what produced that? A. There was some external force that produced that condition, in my estimation.”

On post mortem examination evidence of peritonitis, fibrin and flakes, was found in the lower pelvis, indicating that deceased had peritonitis. About two feet from the ileocaecal valve there was a kink in the bowel that showed fibrous adhesions, indicating inflammation there. The spleen was considerably enlarged and hard. The pancreas also was enlarged, and at the opening into the small intestine was an abscess the size of a goose egg.

“Q. What, Doctor, could produce, or rather what would naturally produce, the kink in the bowel which you discovered there in the post mortem? A. An injury could produce it, an ulcer could produce it, or any portion of the bowel that the mucous surface had been injured, or any condition that would produce an inflammatory change in the intestines, might produce it through inflammation caused by contractions. Q. Now, Doctor, what would be the outward effect apparent on man who was suffering from abscess of the pancreas? A. Well, in the beginning, it would be just like any other form of septicemia, and as it progressed you would have that same picture, with prostration and general emaciation of the body. Q. Is that gradual development or is it speedy? A. It is gradual development.”

Dr. Dennison had observed deceased from May 30th on, and was of opinion that he was suffering from peritoneal abscess or typhoid fever; that he gave evidence of pain and prostration and peritonitis; that at the post mortem “there were fibrin and flocculus deposited in the fluid of the abdomen,” and generally as had been testified by Dr. Hanske. This physician was of the opinion that the septicemia was caused by a microbic invasion from where the kink in the bowel occurred, “where there was evidence of inflammation, deposits of fibrin, and adhesions,” and testified that--

“There are numerous causes for kinks in the bowel, one of which is injury, traumatism, and strain,” unnatural peristalsis, meaning “wormlike action of the bowels.” “Excessive laxatives will sometimes cause the same thing. Q. Doctor, you may state whether or not under this statement of facts the kink in the bowel, such as you found and discovered there on post mortem, could have been produced--that is, where a man thirty-two years of age, weighing one hundred and forty or one hundred and forty-five pounds, five feet eight inches high, engaged in carrying baskets of ashes weighing from one hundred and one hundred and fifty pounds, by holding the basket against his abdomen, and carrying it forty feet to a wagon, and dropping it into the wagon--whether that could have produced a kink of the bowel such as you describe. A. Such a condition could have been produced in that way.”

On cross-examination he testified that the loop in the bowel could have been caused by carrying heavy weight, although he could not tell it, and--

“That there are instances on record of the same conditions producing the same results. Q. That is an unusual strain upon the muscles? A. I judge it is more of a twist that one gets into, would be required to do that than ordinary lifting. Q. That is the twisting of the muscles in an unusual position? A. A pressure on the abdominal contents.”

He thought a kink might be caused by “increased vermicular action of the bowels,” or by the “natural spasmodic movement of the bowels,” or “from a weakness in the wall of the gut,” or “from gas formation,” as from “fermentation of food or other things,” or “external violence,” or from “injuries.”

“Q. If there were peritonitis or septicemia in the bowel, it might cause the loop in the bowel, might it not? A. Well, a loop might occur with those conditions. I don't say that it would be the cause of it, but it might occur with it; that the inflammation would be produced by the loop, and that, if peritonitis with the resulting fluids thrown out, it would be possible for that to glue itself on or to become adhered and so kink.”

Dr. Smith also testified as an expert, and thought that the mere carrying of the ashes would not “ordinarily cause decedent any trouble.”

A hypothetical question reciting the facts was then propounded to the witness, and he was asked:

“What do you say, in your judgment, as to whether, in the carrying of the ashes, he in some way injured the intestines? A. My opinion would be there must be some external cause that produced the conditions described.”

The doctor was then asked to base his opinion on the assumption that deceased was in good health, a man of 32 years, engaged in moving ashes, as he was,...