Eman v. Fidelity & Casualty Co. of New York

• Citation: 201 Pa. 537,51 A. 177
• Decision Date: 24 February 1902
• Docket Number: 56
• Parties: Van Eman v. Fidelity & Casualty Company of New York, Appellant
• Court: Pennsylvania Supreme Court

51 A. 177

201 Pa. 537

Van Eman v. Fidelity & Casualty Company of New York, Appellant

No. 56

Supreme Court of Pennsylvania

February 24, 1902

Argued October 30, 1901

Appeal, No. 56, Oct. T., 1901, by defendant, from judgment of C.P. No. 3, Allegheny Co., Feb. T., 1899, No. 355, on verdict for plaintiff in case of Millie W. Van Eman v. Fidelity &amp Casualty Company of New York. Affirmed.

Assumpsit on a policy of accident insurance. Before EVANS, J.

The facts are stated in the opinion of the Supreme Court.

When the plaintiff was on the stand the following offer was made:

Counsel for plaintiff now proposes to prove by the witness on the stand, that upon Friday, the day of the accident, upon Mr Van Eman's return home and in connection with his complaint of pain, he told the witness on the stand, where, when and how he had sustained the injury to the wrist. Objected to as irrelevant and immaterial and incompetent. Objection overruled. To which ruling, the counsel for defendant requests an exception. Exception allowed and bill sealed. [4]

Under objection, the witness testified as follows:

"Q. When you first saw your husband, Friday, when he returned home, did he state to you, when and where and how the accident happened? A. He did. Q. What time in the afternoon was it? A. It was between four and five o'clock Friday. Q. What did he say to you? A. He told me, on his way home, he felt very much fatigued, and fell asleep with his arm resting on the arm of the chair and supporting his head, and he did not know anything further until his arm was knocked out from in under his head, and he could not raise it, and when he wanted to pick it up, he had to do it with the other hand; he had no power over it. Q. Did he speak of its striking . . . . A. He said the jar of the car had knocked his arm, he supposed, against the arm of the seat. Q. Which arm was it? A. His left arm."

The court: "Q. Did he say where this accident happened? A. On the train. Q. Well, which train? A. On a passenger train on the Lake Erie Railroad."

The court admitted under objection and exception the correspondence between the company and its agent referred to in the opinion of the Supreme Court. [5]

The court also admitted under objection and exception the letter of W. O. McNary, referred to in the opinion of the Supreme Court. [6]

The court refused binding instructions for defendant.

Verdict and judgment for plaintiff for $11,414.95. Defendant appealed.

Errors assigned among others were (1) above instruction, quoting it; (4-6) rulings on evidence, quoting the bill of exceptions.

Homer L. Castle with him William A. Stone, Stephen Stone and W. E. Lineaweaver, for appellant. -- Those only are res gestae which are so intimately associated with the main act as to be the unconsidered declarations growing out of the instant impressions of the act: Ogden v. Pennsylvania R.R. Co., 23 W.N.C. 191; Coll v. Easton Transit Co., 180 Pa. 618; Vicksburg & Meridian R.R. Co. v. O'Brien, 119 U.S. 99; Carnes v. Iowa State Travelingmen's Assn., 106 Iowa 281.

Plaintiff did not comply with the terms of the policy calling for notice and proof of death: Trask v. State Fire & Marine Ins. Co., 29 Pa. 198; LaFayette Gould v. Dwelling House Ins. Co., 134 Pa. 570.

Edwin W. Smith, with him W. O. McNary and Knox & Reed, for appellee, cited as to the presumption of accident: Peck v. Equitable Accident Assn., 52 Hun, 255; Bacon v. U.S. Mut. Accident Assn., 44 Hun, 599; Travellers' Ins. Co. v. McConkey, 127 U.S. 661.

Cited as to the proofs of death: Hower v. Susquehanna Mut. Fire Ins. Co., 9 Pa. Superior Ct. 153; Todd v. Quaker City Mut Fire Ins. Co., 9 Pa. Superior Ct. 371; Thierolf v. Universal Fire Ins. Co., 110 Pa. 41; Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149; Welsh v. London Assurance Co., 151 Pa. 607; Roe v. Dwelling House Ins. Co., 149 Pa. 94; Lycoming County Mut. Ins. Co. v. Schollenberger, 44 Pa. 259; Home Ins. & Banking Co. v. Myer, 93 Ill. 271; Susquehanna Mut. Fire Ins. Co. v. Staats, 102 Pa. 529; Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350; Lycoming County Mutual Ins. Co. v. Schollenberger, 44 Pa. 259.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL and BROWN, JJ.

OPINION

MR. JUSTICE BROWN:

The Fidelity and Casualty Company of New York issued an accident insurance policy to David W. Van Eman, the beneficiary, if he should die from injuries resulting from accident, being his wife, Millie W. Van Eman. The amount to be paid to her was $5,000; but, if death resulted from injuries received by the insured while "riding as a passenger in or on a public conveyance propelled by steam, electricity or cable, and provided by a common carrier for passenger service," the sum to be paid was $10,000. She brought this suit, and, on the trial, proved that the insured, on May 27, 1898, when the policy was in full force and he was in good health, had left Gallitin, on the Pittsburg and Lake Erie Railroad, for Pittsburg, shortly before noon, and ought to have arrived in that city at a little after one o'clock. She testified that he reached home between four and five o'clock that afternoon and complained to her of an injury to his left wrist and of the great pain it gave him; that he told her, as soon as he reached home, he had fallen asleep in the car, with his head resting on his left hand, and a jar of the train had knocked his arm from under his head, and, when he awoke, he could not raise it up; that he had no power over the left arm and picked it up with his right hand, and that he supposed the jar of the car had knocked his arm against the arm of the seat. There was proof that he suffered great pain and that his condition became most distressing. He died July 10, and though, as usual, the doctors differed as to the cause of his death, according to the testimony of the three called by the plaintiff, the jury were fully justified in finding that there had been external and violent injury to the wrist, and that death had resulted from it. We have no concern with the conflicting theories of these physicians and will not consider them. It was for the jury to pass upon them. They did so by finding that the cause of the insured's death was an injury to the wrist, and it is for us simply to pass upon two questions raised on this appeal; first, was it competent for Mrs. Van Eman to testify as to what her husband told her as to the time, place and manner of the accident? and, secondly, did the insurance company receive affirmative proof of death, in accordance with one of the conditions of the policy?

It may be that the statement of the deceased, made to his wife several hours after he had left the trian, ought not to have been received as part of the res gestae, and we do not understand that it was offered as such. When the husband reached his home with his aching arm, the one person for whom he first looked and to whom he would first tell the simple truth was his wife. He might have said nothing to any passenger on the trian, nor to any friend or passerby on his way home; but there he would tell what had happened, and first of all, to the one to whom he would naturally turn for attention and comfort. Human experience teaches us that he would speak the truth to her, and that he would tell her just what had happened to him, as he would have told it, if he had spoken, to those about him when he awoke in the car with his helpless arm at his side. At no time could he have told just how he had...