Continental Casualty Company v. Lloyd
| Decision Date | 16 March 1905 |
| Docket Number | 20,351 |
| Citation | 73 N.E. 824,165 Ind. 52 |
| Parties | Continental Casualty Company v. Lloyd |
| Court | Indiana Supreme Court |
Rehearing Denied June 1, 1905.
From Laporte Superior Court; Harry B. Tuthill, Judge.
Action by Eliza Lloyd against the Continental Casualty Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901, Acts 1901 p. 590.
Affirmed.
Arthur W. Underwood and L. L. Bomberger, for appellant.
Peter Crumpacker and Daniel J. Moran, for appellee.
This action was instituted by Eliza Lloyd, appellee, beneficiary under an accident insurance policy issued to her husband William M. Lloyd, by appellant on September 11, 1901, to continue in force one year from date. William M. Lloyd's death occurred on October 22, 1901. The action is based upon the policy, and proceeds upon the theory that the decedent sustained a fall while traveling on a sidewalk on October 3, 1901, causing his death.
Under issues formed by the general denial, there was a trial, verdict and judgment for plaintiff for the full amount of the policy.
Before the trial was entered upon, the parties entered into the following stipulation:
Stipulations by parties or their attorneys, entered into for the government of their conduct, or control of their rights, in the trial of a cause, are generally enforced by the courts, unless they appear to be unreasonable, or in contravention of good morals or of sound public policy. Hine v. New York, etc., Co. (1896), 149 N.Y. 154, 160, 43 N.E. 414; Clason v. Shepherd (1859), 10 Wis. 356; McCormack v. Phillips (1887), 4 Dak. 506, 532, 34 N.W. 39; 20 Ency. Pl. and Pr., 607, and authorities there collated.
Nothing unfair or obnoxious appears from the above agreement, and it will therefore be treated, as its terms import, as a waiver by the defendant of all matters of defense to the plaintiff's claim save and except only the cause of the death of plaintiff's decedent, William M. Lloyd; otherwise and interrogatively expressed, the issue is narrowed to, did Lloyd's death occur solely by accident within the conditions of the policy in suit?
The stipulation makes unimportant certain questions raised by demurrer to the sufficiency of the complaint, since the defendant cannot be harmed by the plaintiff's failure to allege matters waived, or impliedly admitted by the agreement. Eliason v. Bronnenberg (1897), 147 Ind. 248, 255, 46 N.E. 582; § 348 Burns 1901, § 345 R. S. 1881.
There can be no question that the cause of death of the insured is sufficiently alleged in the complaint, and the stipulation will, therefore, eliminate from our consideration all questions presented by the record except those arising under the motion for a new trial. Chief among the reasons assigned in the motion are the insufficiency of the evidence to sustain the verdict, and that the same is contrary to law. The insistence of appellant is that there is a total absence of evidence to show that Lloyd's death resulted from purely accidental causes, and, as to that material fact, the verdict is without support. In entering upon the consideration of this question we assume that the burden is upon appellee to establish that the manner of the insured's death was within the terms of the policy. Sharpe v. Commercial Travelers', etc., Assn. (1894), 139 Ind. 92, 37 N.E. 353.
We are not called upon to consider the weight of the evidence and decide whether the preponderance is with the appellee, if there was evidence on both sides, but, the burden being on the appellee, it must appear that there was at least some evidence, direct or inferential, in support of the contested proposition. If, however, we find any legal evidence in support of all the essential facts in the matter controverted, we must assume that such evidence was sufficient to satisfy the jury as against all the adverse evidence, and leave the facts so found undisturbed.
Appellee's theory of the case, which was evidently adopted by the jury, seems to be that the insured, who was a boss roller in a rolling-mill, being in good health, having eaten his supper, left his boarding-house in the twilight of the evening on October 3, 1901, to go to the post-office, about two and one-half blocks away; that when he had covered about one-half of the distance he struck his toe against a water box that protruded two inches above the sidewalk, whereby he was thrown violently to the ground, the shock caused by the fall producing cerebral hemorrhage, which caused his death on the 22d day of the same month.
It is not debatable that there was sufficient evidence to warrant the jury in finding that Lloyd stubbed his toe on a water box and fell violently onto the board sidewalk, or into the macadamized gutter. The question now is, was there evidence produced at the trial to the effect that the fall so received was the only active, efficient and proximate cause of the death of the insured? The cause of death was a question of fact for the jury, and our task is done if we find there was some legitimate evidence in support of their conclusion. There was evidence to the following effect: Before his last illness Lloyd was a man who for years had appeared to be in excellent health, with no symptoms of nervous disorder, no headache, no nausea, no vertigo, no drowsiness, and there were no manifestations that the brain was in any other than a normal condition. He was over fifty years of age, five feet ten inches in height, weighed from 165 to 175 pounds, made no complaints of physical ailments, and was constantly engaged in his employment. In the dusk of the evening of October 3, 1901, on his way to the post-office, he was seen in a "getting-up position" at a point in or near the sidewalk where a water box extended two inches above the surface of the walk. In a few minutes thereafter it was observed that his hands were lacerated and bleeding, as if cut by the broken stone or macadam, his hat and the front of his clothing were "covered with dust," and he had a mark upon his shoe which indicated that it had been in severe contact with some hard substance. In a few minutes after the fall he complained of pain in his head, compressed his head with his hands, and was accompanied to his boarding-house by the superintendent of the rolling-mill. The next morning he went to the rolling-mill to resume his duties as boss roller. During the day he was sleepy, dull, and complained of headache, and spent much of his time lying on a bench. In the evening, about 5 o'clock, he was assisted home and to his room by the superintendent, and appellant's local physician, Dr. Schleiker, was summoned to attend him. He was found by the physician to be complaining of a severe headache, slight chills and general lassitude. The next morning the doctor found him in a stupor, verging on coma; he was not easily aroused, his responses incoherent, and he still complained of pain in the head. In the evening of the same day all the symptoms had become more profound. His stupor had increased; it was more difficult to arouse him, and apparently he knew nothing. The next day the stupor had increased to coma. At this time his breathing was stertorous, both slow and deep, and shallow and rapid. This condition continued about a week, when he regained consciousness and appeared to be improving, although at times incoherent in speech. In about a week his drowsiness returned, although he did not complain further of headache, and gradually sank into coma, from which he never recovered. There was an inequality of the pupils, which showed undoubted pressure on the brain; also sensory paralysis and increased reflexes; also slight paralysis of facial muscles was indicated by the blowing, breathing and stertorous respiration. The skull was trepanned, the membranes of the brain laid bare, opened, and a dram and a half of serous, blood-tinged fluid escaped through the opening. Dr. Schleiker and a consulting physician diagnosed the case as cerebral hemorrhage produced by the fall, and, as stated by the former: "I had been told by his immediate friends that he had had a severe fall, and the fact that these symptoms all came right on the heels of the fall made it apparent that it was due to that; in fact, he was in perfect health previous to that." The hemorrhage could be due to the shock of the fall.
An autopsy, witnessed by Dr. Schleiker, was held on the body which revealed the existence of a tumor surrounding the right middle cerebral artery, obscuring about two inches of the artery. This artery is the only source of blood supply to a portion of the brain. A tumor of this size and form requires from six months to two years to form. The encroachment of the tumor upon the caliber of the artery tended to inflammation, and ultimately to blood clot, which would cut off from a part of the brain the blood supply, by obstructing the...
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