Calkins v. National Travelers Benefit Ass'n of Des Moines

• Decision Date: 25 June 1925
• Docket Number: 36143
• Parties: ETTA V. CALKINS, Appellee, v. NATIONAL TRAVELERS BENEFIT ASSOCIATION OF DES MOINES, Appellant
• Court: Iowa Supreme Court

204 N.W. 406

200 Iowa 60

ETTA V. CALKINS, Appellee, v. NATIONAL TRAVELERS BENEFIT ASSOCIATION OF DES MOINES, Appellant

No. 36143

Supreme Court of Iowa, Des Moines

June 25, 1925

Appeal from Clarke District Court.--A. R. MAXWELL, Judge.

ACTION upon an accident policy. Verdict and judgment for plaintiff. Defendant appeals.

Reversed.

Stipp Perry, Bannister & Starzinger, for appellant.

Slaymaker & Killmer, for appellee.

STEVENS J. FAVILLE, C. J., and DE GRAFF and VERMILION, JJ., concur.

OPINION

STEVENS, J.

This is an action in the name of the legal beneficiary, upon an accident policy, to recover the amount allowed thereby for the death of the insured in the event that death resulted "directly, independently, and exclusively of any and all other causes from bodily injuries effected solely through accidental means." The petition is in the usual form, and the defense relied upon is the general issue.

Raymond Calkins, the insured, is described as a man about 34 years of age, a veterinarian, practicing his profession in Clarke County, a man of education, possessing a knowledge of chemistry and considerable native ability. His death occurred sometime during the night of May 16, 1922, and was the result, directly or indirectly, of the use of alcoholic beverages.

It appears that sometime, perhaps prior to noon, on May 16th, the insured began to show the effects of intoxicants, and, upon returning to his home shortly after 7 o'clock in the evening, was suffering from violent pains in his head and stomach. A physician, who was a witness upon the trial, arrived about 8 o'clock. He testified that the patient was suffering from the effect of bad whisky, which contained an excessive quantity of fusel oil, and that he administered a small dose of atrophine hypodermically. He neither gave nor prescribed other medicine. Deceased became quiet as the result of the hypodermic, and the doctor went away. His wife testified that he complained, later in the evening, of pain in his stomach, and requested her to place her hand or head thereon. After she did so, he said he felt easier. She left him, to look after the children, and returned to his room, where she fell asleep on the bed, and awakened about midnight. Her husband was then, apparently, sleeping. She discovered early the following morning that he had died during the night. The physician who attended him testified upon the trial that his death was due to the poison contained in the liquor drunk by him. He further testified that the odor of "hooch," or fusel oil, was very strong upon his breath. The cause of death stated by him in the death certificate was: "Uncertain. Following acute gastritis evening before,"--and that contributory causes were "heart disease and lungs." The certificate of the witness attached to the proofs of loss gave the cause of death as poison. Both the physician and appellee, who is the surviving wife of deceased, testified that, on the night on which his death occurred, he was pale, and somewhat wild in his actions, and that his eyes were glassy and staring; that he suffered intensely; and that his feet and hands were cold. The insured had been, for a considerable time, habitually addicted to the use of intoxicating liquor. His wife testified that he was brought home on the afternoon of May 9, 1922, in an intoxicated condition; that his eyes were closed; that he was limp and helpless. On that occasion, he complained of pain in his stomach and head. She further testified that the appearance of his eyes and face was different from what she had previously seen, although she had on several occasions seen him when he was intoxicated. On or about May 11th, appellee went with him to visit her sister at Des Moines, where they remained until the 16th. She testified that during that period he ate little and slept a great deal, and that his demeanor was somewhat unusual.

The incident and the evidence relied upon to prove that death was caused by accidental means are as follows:

H. G. Stubblefield testified:

"I drove up in front of the livery barn, and left my car standing in front of the barn; and it was right at 7 o'clock,--it was right close to that,--it was not five minutes off either way; and I went into his office, and he was in there; and I asked him about the serum, and he told me just what I have told you,--that he hadn't been to the express office to get it yet, and he would call me later on. I started on out, and he said, 'Wait a minute,--I have got something here I want you to try;' and he went in his back room, and he came out of the back room with a gallon jug with some stuff in it,--I would say a quarter of an inch in the bottom of the jug,--and he says, 'I want you to taste that;' and I took the jug and put it up to my lips and tasted it; and it was awful hot,--just like you would put gasoline in your mouth. Q. How much, if any, of it did you drink? A. I never really drank any of it. I never let any of it get down my throat. I just got it in my mouth,--just tasted it. I don't suppose I got over a teaspoonful in my mouth. Q. What did you do with it? A. I handed the jug back to him, and it made the tears come in my eyes; and after I handed the jug back, I turned around, and I heard him cough after I turned around; and I turned to look at him, and he was strangling, as though he had taken a drink out of it; and he went on coughing like you do when you are strangling; and I says, 'What is the matter, Doc?' and he said, 'Well, my hand slipped, and I got lots more of that stuff than I aimed to;' and I don't remember whether there was anything else said or not; but, at any rate, he set the jug down on the floor of his back room."

Later a bottle containing about one-half ounce of the liquor was taken to the physician who attended deceased, for examination. No chemical analysis was made of it. The physician testified, however, that it had the odor of, and in his opinion was largely, fusel oil. Fusel oil is defined as a volatile oily liquid obtained in the rectification of spirituous liquors made from the fermentation of grain, potatoes, the marc of grapes, and other material. Its chief constituent, amyl alcohol, is described as a direct nerve poison. According to...