City of Cherokee v. Ætna Life Ins. Co. of Hartford, Conn.

• Decision Date: 14 March 1933
• Docket Number: No. 41658.,41658.
• Citation: 215 Iowa 1000,247 N.W. 495
• Parties: CITY OF CHEROKEE ET AL. v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
• Court: Iowa Supreme Court

215 Iowa 1000

247 N.W. 495

CITY OF CHEROKEE ET AL.

v.ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

No. 41658.

Supreme Court of Iowa.

March 14, 1933.

Appeal from District Court, Cherokee County; C. W. Pitts, Judge.

Action at law on insurance policy. Trial to the court. Motion to direct a verdict for defendant sustained, and plaintiffs appeal. The opinion states the facts.

Affirmed.J. F. Loughlin and McCulla & McCulla, all of Cherokee, for appellants.

Gleysteen, Purdy & Harper, of Sioux City, and Herrick & Ary, of Cherokee, for appellee.

MITCHELL, Justice.

The appellant, an insurance company, executed and delivered a policy of insurance to the city of Cherokee, Iowa, on or about the 1st day of May, 1926, insuring the employees of said city, who were members of the volunteer fire department of said city, against death resulting, directly and independently of all other causes, from bodily injuries effected, during the term of the policy, solely through external, violent, and accidental means, as in the policy provided. The policy was in full force and effect in the month of January, 1931.

Calvin O. Royer was a member of the fire department of Cherokee, Iowa, and in good standing on the 21st day of January, 1931. On that date, early in the morning, he responded to an alarm calling out the fire department. The fire was in a refrigerator car in the Illinois Central yards at the intersection of Beach and Fifth streets. The refrigerator car was heated by charcoal. It was a cold morning, the ground was frozen, and there was some snow on the ground. Shortly after Royer arrived at the fire, he walked away from the fire toward a couple of his fellow firemen who were standing on the top of a little incline. His face was covered with soot. The incline did not fall over six or eight inches in a distance of seven feet. As he came toward his fellow firemen, he was smiling and saying something, although the record does not show what statement he made. When he was within a few feet of his fellow firemen, he threw up his hands, fell over backward, and his feet went up in the air. He fell right straight back, his head hitting the frozen ground. After he fell, he lay on his back on the ground. He made no statement of any kind, but was breathing. He was picked up, placed in an automobile, and rushed to the hospital. He died on the way to the hospital.

Hannah Royer was appointed administratrix of the estate of Calvin O. Royer, and this action was brought both in the name of the city of Cherokee and in the name of the administratrix of the Calvin O. Royer estate, against the appellee upon the policy of insurance which the appellee had written.

It was the contention of the appellee that Royer died of myocarditis, and that the insurance company was not liable under the policy because, under the terms of the policy which the appellee issued, it was liable only in case death resulted from bodily injuries, directly and independently of all other causes, solely through external, violent, and accidental means, as provided by the terms of said policy.

A jury was waived, and the cause was submitted to the court. At the close of all the testimony, the appellee moved the court for a directed verdict, which motion was sustained by the court.

The record shows that Calvin O. Royer at the time of his death was 56 years of age. He was a member of the Cherokee fire department, and early in the morning of January 21, 1931, he was called to a fire in the railroad yards at Cherokee, and, while in the performance of his duties as a fireman, he slipped and fell, striking his head on the frozen ground. He never regained consciousness thereafter, but died within ten minutes after the fall. There was a slight incline at the place where he fell, and snow was on the ground. He was feeling all right the day that he died. There were no bumps or bruises on his head, and there was no bleeding. No autopsy was performed. He was dead before any doctor had a chance to examine him. The testimony of the doctors showed that his death might have resulted from the fall. Shortly after he died, his body was examined by a doctor, who testified that he ascertained from his examination that Royer had an enlarged heart. There was also testimony that in 1924 he was examined by his family physician, Dr. Cleaves, on behalf of the United States government, for a pension. Royer being a Spanish-American War veteran, under certain conditions, was entitled to a pension, and the government designated Dr. Cleaves, who also happened to be the family physician of Royer, to examine him. Royer was examined at that time, and Dr. Cleaves, over objection properly made, testified that from the examination made he found that Royer was suffering from high blood pressure, and that the condition that he was in at that time had a tendency to bring on a disease of the heart, and that it is common for persons who have high blood pressure to die very suddenly and without warning. In answer to a hypothetical question covering the facts as set out in this case, another doctor testified that in his judgment the probable cause of Royer's death was myocarditis. Upon cross-examination, however, he stated that it was possible that the fall might have caused this man's death. The death certificate, which was produced in evidence, gave as the cause of death, myocarditis. The evidence of the appellants in this case was that of the eyewitnesses who saw the accident. Opposed to this testimony was the testimony of the experts, the doctors who testified in answer to a hypothetical question setting out the facts in this case.

[1] The question was clearly one for the jury. The jury having been waived in this case, the court was in the same position that a jury would have been in. The appellants complain because at the end of all the testimony a motion to dismiss was made by the appellee and was sustained. This court, in a very recent case, passed upon this very question. In the case of Griffith v. Arnold & Rasmussen, 204 Iowa, 1216, 216 N. W. 728, 729, this court said:

“The action was at law and a jury was waived therein by stipulation. The judge who sustained the motion of the defendant was the trier of fact. If we were to hold that plaintiff's evidence made a prima facie case, would it follow that he was necessarily entitled to a reversal? A prima facie case is not necessarily a conclusive one before the jury. A plaintiff may make a prima facie case in a technical sense which entitles him to go to the jury, and yet may lose his case before the jury for want of strength and substance in his evidence. And so in this case, even though the judge believed that the plaintiff had made a prima facie case in a technical sense, which would have entitled him to go to the jury, yet, if he had believed also that the evidence was not convincing, and that the circumstances proved and the inferences which were sought therefrom were weak and inconclusive, and would not justify a judgment for plaintiff on the merits, then he was under clear duty to dismiss the petition. Where the judge who hears the motion to dismiss is to be the jury which shall try the case upon its merits, we observe no reason why he should overrule a motion to dismiss only to dismiss upon the merits on his own motion.”

[2] This court has repeatedly held that, where the cause is tried to the court without a jury, the findings of the trial court on questions of fact are as conclusive and binding upon the Supreme Court as the verdict of a jury, and such findings will not be reviewed or disturbed by the Supreme Court where there is any evidence to substantiate them. In the case at bar, the appellants saw fit to waive a jury, and submitted the case to the court. There was a dispute in the evidence, and we are therefore bound by the findings of the lower court.

The other error complained of by the appellants was that the lower court erred in admitting the testimony of the witness Dr. P. B. Cleaves. Dr. Cleaves was called as a witness by the appellee. He is a practicing physician at Cherokee, Iowa. Calvin O. Royer was a Spanish-American War veteran, and Dr. Cleaves was directed by the United States government to...