Cretney v. Woodmen Acc. Co.

• Citation: 219 N.W. 448,196 Wis. 29
• Parties: CRETNEY v. WOODMEN ACC. CO.
• Decision Date: 08 May 1928
• Court: United States State Supreme Court of Wisconsin

196 Wis. 29

219 N.W. 448

CRETNEY

v.WOODMEN ACC. CO.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Circuit Court for Iowa county; S. E. Smalley, Circuit Judge.

Action by Mary Cretney against the Woodmen Accident Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

Action upon policy of accident insurance. Action begun the 9th day of May, 1927. Judgment entered November 15, 1927. James Cretney, deceased, husband of the plaintiff, obtained from Woodmen Accident Company of Lincoln, Neb., a policy of insurance which provided indemnity against loss of life caused by accident when the loss was affected “through violent, external and accidental means and entirely independent of all other causes, and which shall leave visible marks upon the body.”

On December 27, 1926, the deceased and Ira Powell, a neighbor, were working on the Powell farm. While Powell and Cretney were engaged in dragging a stick of wood upon the ground by lifting one end off, and partially carrying and partially dragging it, Cretney slipped, but the log did not go down to the ground. Cretney went down on one knee. He made no complaint either at the time or during the afternoon. He got up and continued to load the log upon the sled, and worked until 5 o'clock in the afternoon, when he went home. The log was a green stick of timber 10 or 12 feet long, the size of a stovepipe. Cretney said to Dr. Reese, who was called in later, that he had not felt right since he was loading the wood. He said: “I don't know what happened to me, but I have been in awful pain ever since.” On his return home about 5:30 p. m. on the day of the occurrence, he looked pale, and stated he was not feeling well, and complained of pain across his whole abdomen. He became violently ill by the next morning, vomiting a dark fluid, and remained at home on the 28th. In the early morning of the 29th, Dr. Reese was called, and arrived about 7 o'clock. About 5 o'clock in the morning of the 29th, the plaintiff testified that she observed a dark red mark across the abdomen of the deceased about as large as two fingers. Dr. Reese testified that when he saw the deceased on December 29th there were no marks. On December 29th Dr. Reese called Dr. Cooksey, of Madison, and the latter performed an operation. The appendix was removed. It appeared like a tumor. A large growth three or four inches long, about an inch and a half thick, and two inches wide, was found inside the stomach. Cretney died on December 30th, three days after the accident. At the time of the operation, the growth in the stomach had gone so far as to cause the endolymph glands in the abdomen to become swollen. The growth was of considerable standing, and well developed, and could not have occurred subsequent to the date of the accident. It was probably of six to eight months' standing. The doctor was unable to state how long Cretney might have lived if the cancer had not been broken open. The cause of death was given as bleeding from the cancerous growth, and the growth itself was assigned as a contributing cause.

There was a special verdict, and the jury found: (1) That James Cretney, the husband of the plaintiff, did accidentally sustain a personal injury on December 27, 1926; (2) that such accident did leave a visible mark upon the body of the said James Cretney; and (3) that the said James Cretney came to his death on December 30, 1926, from an injury effected through violent, external, and accidental means, entirely independent of all other causes. There was judgment for the plaintiff accordingly, from which the defendant appeals.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

James E. O'Neill, of Dodgeville, and T. M. Priestley, of Madison, for respondent.

ROSENBERRY, J.

Two principal questions are raised by the record in this case: First, is the finding of the jury that the deceasedcame to his death from an injury effected through violent, external, and accidental means, entirely independent of all other causes, sustained by the evidence? Second, was the testimony of Dr. Cooksey properly received in the case.

The defendant contends that the law may be stated as follows: (1) When an accident causes a diseased condition, which, together with the accident, results in injury or death complained of, the accident alone is to be considered as the cause of the injury or death, citing French v. Fidelity & Casualty Co., 135 Wis. 259, 115 N. W. 869, 17 L. R. A. (N. S.) 1011. (2) When, at the time of the accident, the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered the sole cause, citing Bohaker v. Travelers' Ins. Co., 215 Mass. 32, 102 N. E. 342, 46 L. R. A. (N. S.) 543;Leland v. Order of United Com. Travelers, 233 Mass. 558, 124 N. E. 517. (3) When, at the time of the accident, there was an existing disease, which, co-operating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes, citing Cary v. Preferred Accident Ins. Co., 127 Wis. 67, 106 N. W. 1055, 5 L. R. A. (N. S.) 926, 115 Am. St. Rep. 997, 7 Ann. Cas. 484.

The trial court was of the opinion that this case fell within the first class. The defendant contends that it falls within the third class. Stating the facts most strongly in favor of the plaintiff, the following situation was presented: The deceased was suffering from a cancerous growth in the region of his stomach, which was at the time in an advanced stage, but which, up to the day of the accident, had given him no trouble, and which was unknown to him. He had remained in full physical vigor, as is indicated by the character of the work in which he was engaged. He died from a hemorrhage due to a ruptured blood vessel in the cancerous mass. He would have died eventually of the cancer had there been no rupture. The evidence is silent as to whether or not the rupture of a blood vessel in a cancerous mass of this kind is a usual, ordinary, or expected termination.

[1] The general rules of law governing this situation seem to be well established. See note, 34 L. R. A. (N. S.) 445; also note, 52 L. R. A. (N. S.) 1203; 14 R. C. L. 1246; White v. Standard Life & Acc. Ins. Co., 95 Minn. 77, 103 N. W. 735, 884, 5 Ann. Cas. 83;Husbands v. Indiana Travelers' Acc. Ass'n, 194 Ind. 586, 133 N. E. 130, 35 A. L. R. 1184, and note.

The rule is stated...