Cary v. Preferred Accident Ins. Co. of New York

• Decision Date: 30 January 1906
• Citation: 127 Wis. 67,106 N.W. 1055
• Parties: CARY v. PREFERRED ACCIDENT INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

127 Wis. 67

106 N.W. 1055

CARY

v.PREFERRED ACCIDENT INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Mary Jane Cary against the Preferred Accident Insurance Company of New York. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an appeal from a judgment of the circuit court for Milwaukee county, rendered upon a special verdict in favor of plaintiff for $11,694.64 and costs in an action upon a policy of accident insurance. The defendant insured Eugene Cary against the effects of bodily injury caused solely by external, violent, and accidental means, and undertook to pay the insured the sum of $25 per week for not exceeding 52 weeks for a total disability for that period. Different amounts were to be paid in the event of the loss of hands or eyes, etc., or in case of permanent disability; and if death resulted from such an injury within 90 days from the date of the injury the company agreed to pay the beneficiary under the policy the sum of $5,000. There were special provisions regarding injuries received on railroad trains and other trains and a number of exemptions from liability. The exemptions material of consideration on this appeal are given hereafter. On Wednesday, June 3, 1903, Eugene Cary, the insured, accidentally fell while on his way to the bathroom in his house, and sustained an abrasion of the skin on his right leg, just above the ankle. The accident occurred in going down a flight of three steps in the hallway between his bedroom and the bathroom. Immediately after the accident his wife dressed the wound, which was a little bloody, with some white cloth. This dressing was renewed daily for a week, except on Sunday, and on one occasion she applied vaseline to it. On Friday she noticed that the wound had changed somewhat in its appearance. It had become red in color. On the second Wednesday, one week after the accident and two days before the death, a physician first saw the wound, and he found that Mr. Cary was suffering from blood poisoning. Two days later, which was nine days after the accident, Mr. Cary died. On July 2, 1903, plaintiff gave notice of the claim, alleging that Mr. Cary, in “descending the steps leading to the bathroom, slipped and fell, injuring his right leg. Inflammation set in, owing to infection of the wound, which resulted in his death on June 12, 1903.” On August 15, 1903, a post mortem examination was made by physicians representing both the plaintiff and the defendant, and subsequently parts of the body were microscopically examined. Upon the trial of the action all the medical experts agreed that Mr. Cary died from the disease of septicæmia or blood poisoning, resulting from the introduction of bacteria into his body through this wound. Plaintiff avers that death resulted solely and proximately from the accidental fall, which produced the abrasion of the skin on the leg of the deceased. Defendant denies that death so resulted, and asserts that death resulted from causes, under which the policy exempts it from liability, and claims that death resulted either from poison or infection or something accidentally or otherwise taken or absorbed, or that death resulted directly or indirectly, wholly or in part, from causes or conditions of bodily infirmity or disease. The provisions of the policy under which these exemptions are claimed are as follows: “(1) This insurance does not cover * * * any case of disability or death whatever, except where the claimant shall furnish to the company direct and positive proof that such disability or death resulted proximately and solely from accidental causes; (2) nor injury, fatal or nonfatal, resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed, or inhaled; (3) nor death * * * nor disability resulting either directly or indirectly, wholly or in part, from any of the following acts, causes, or conditions: * * * Bodily infirmity or disease of any kind.” The cause was submitted to a jury, which by special verdict found the following facts: “(1) Did Eugene Cary, by a fall in or near his bathroom, sustain an injury to his right leg on June 3, 1903, causing an abrasion of the skin on said leg? Answer: Yes. (2) If you answer the first question ‘Yes,’ then answer this question: Did the bacteria causing septicæmia, or blood poisoning, enter into the system of Eugene Cary through such abrasion of the skin? Answer: Yes. (3) Did Eugene Cary at the time of his death have a varicose ulcer on the upper part of the lower third of his right leg? Answer: No. (4) If you answer the third question ‘Yes,’ then answer this question: Did the bacteria causing septicæmia, or blood poisoning, enter into the system of Eugene Cary through such varicose ulcer? Answer: No answer. (5) Did the death of Eugene Cary result proximately and solely from bodily injury caused by external, violent, and accidental means? Answer: Yes. (6) Was there any such diseased condition of either the kidneys, the liver, or the veins of the right leg of Eugene Cary as contributed to cause his death? Answer: No. (7) Was the immediate cause of the death of Eugene Cary infection from bacteria, producing the septicæmia aforesaid? Answer: Yes. (8) If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess her damages? Answer (by the court by consent of counsel): $11,269.64; one year and five months interest, 6 per cent. $425.00--$11,694.64.” The court refused to direct a verdict for defendant, and also denied a motion for a new trial. This is an appeal from a judgment entered in favor of plaintiff upon the special verdict.Van Dyke & Van Dyke (J. H. Roemer, of counsel), for appellant.

J. G. Donnelly and Timlin & Glicksman, for respondent.

SIEBECKER, J. (after stating the facts).

The defendant insured Eugene Cary for the term prescribed in the policy “against the effects of bodily injury caused solely by external, violent, and accidental means,” in the sums and upon the conditions specified, and among other things agreed that, “if death shall result from such injury within ninety (90) days from the date thereof, the said company will pay the sum of $5,000” to the beneficiaries designated in the policy. There is no controversy but that Mr. Cary sustained an injury to his right leg, which caused an abrasion of the skin, that bacteria, causing septicæmia or blood poisoning, entered his system through such abrasion, and that his death resulted therefrom; but there is a wide divergence between the...