Cont'l Cas. Co v. Peltier

• Citation: 104 Va. 222,51 S.E. 209
• Parties: CONTINENTAL CASUALTY CO. v. PELTIER.
• Decision Date: 22 June 1905
• Court: Supreme Court of Virginia

104 Va. 222

51 S.E. 209

CONTINENTAL CASUALTY CO.

v.PELTIER.

Supreme Court of Appeals of Virginia.

June 22, 1905.

1. Accident Insurance—Death—Proximate Cause—Instructions.

Where, in an action on an accident policy insuring against death from accident solely and independently of all other causes, it appeared | that deceased died from typhoid fever after an | accident, and that there was no necessary or natural causal connection between deceased's injuries and the disease, an instruction that if deceased was injured by accident, and as a direct result of such injuries, as an exciting cause, some disease was set up in his body, which would not have happened but for his injuries, and from which disease deceased died, the injuries would be the proximate cause of his death, and that where death results from any disease which is the direct cause of an injury, and which would not have happened but for the injury, such injury, in contemplation of law, is the cause of death, was erroneous, as misleading the jury to speculate as to whether deceased died from injuries or disease, or from both concurring.

2. Same.

Such instruction was also erroneous as assuming that the injuries alone caused the disease, and as ignoring the provision requiring that the injury should be the sole and independent cause of death.

3. Sams.

Where a policy covered death by accident only in case it was independent of all other causes, and deceased succumbed to an attack of typhoid fever following an accident, an instruction authorizing the jury to infer that, before any other cause than the injuries could be considered as a defense to the policy, it must appear to have been independent of the injuries, was erroneous.

4. Same—Instructions—Curing Error.

Where instructions are inconsistent and contradictory, error in one of them containing an incomplete statement of the law was not cured by a complete statement thereof in the Other.

Error to Corporation Court of Bristol.

Action by Maxie Peltier against the Continental Casualty Company. From a judgment for plaintiff, defendant brings error. Reversed.

W. F. Rhea and Bullitt & Kelly, for plaintiff in error.

A. H. Blanchard, W. H. Rouse, and H. N. Bell, for defendant in error.

CARDWELL, J. The defendant in error (plaintiff in the court below) brought this action to recover the sum of $1,500, the amount of a policy of insurance issued by j plaintiff in error to William Peltier, payable to defendant in error, his wife, within a stipulated time after his death caused by accident; and the verdict and judgment in the court below were for the defendant in error for the amount of the policy, which judgment we are asked to reverse because of misdirection of the jury by the instructions given at the trial, and because the verdict is contrary to the law and the evidence.

William Peltier held what is known as an "accident insurance policy, " whereby plaintiff in error bound itself, among other things, to pay to his wife, defendant in error, the sum of $1,500 "in the event of personal bodily injuries effected * * * through external, violent and purely accidental causes, and if such injuries should solely and independently of all other causes necessarily result in his death within ninety days from the date of said accident."

There were numerous other provisions in the policy, but they are immaterial to the issue in this case.

On the 12th of June, 1903, William Peltier, whilst engaged as a freight conductor on the Virginia & Southwestern Railroad, received in a railroad accident injuries of the character contemplated in the policy, and, as the result thereof, was confined to his bed from the date of bis injury until some time shortly before the 1st day of July following; the time of his actual confinement being variously estimated by the witnesses as from ten days to three weeks. At all events, the fact is undisputed that on the 1st day of July, 1903, he applied in person at the office of the superintendent of the Virginia & Southwestern Railroad Company, in Bristol, for a pass to use on a trip to Big Stone Gap; presumably walking from his home, also in Bristol, to the superintendent's office, and certainly walking up two flights of stairs from the street to the third story of the office building. On the 3d day of July he used the pass, and went to Big Stone Gap, and on July 5th returned to Bristol; riding part of the way on a freight train, climbing into and getting off the freight caboose without difficulty, and telling his fellow trainmen that he was getting on finely, expected to go back to work in a few days, etc. July the 18th or 19th, nearly three weeks after he had gotten up from his injuries and had been going about, he went to the office of Dr. T. F. Staley, a reputable and competent physician, who had attended him and treated his injuries, and complained of headache and other symptoms. After examining him, Dr. Staley told him that he was threatened with typhoid fever, and advised him to go home and go to bed, which he did. On the next day Dr. Staley saw him again, and found that his fears, as expressed the day before, were well founded, and visited him thereafter every day, and sometimes as often as three times during the day, treating him all the while for typhoid fever, until the patient died, on the 16th day of August, 1903.

During the period...