Equitable Life Assur. Soc. of U.S. v. Neale

• Decision Date: 12 May 1953
• Docket Number: No. 35610,35610
• Citation: 258 P.2d 654
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. NEALE et al.
• Court: Oklahoma Supreme Court

Page 654

258 P.2d 654

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. NEALE et al.

No. 35610.

Supreme Court of Oklahoma.

May 12, 1953.

Rehearing Denied June 23, 1953.

Syllabus by the Court.

1. This court will review a verdict founded on conflicting evidence only for the purpose of determining whether it is supported by competent evidence, and not for the purpose of determining the weight of the evidence. Evidence reasonably tending to prove the essential facts in a case, either directly or indirectly, or by permissible inferences, is sufficient to sustain a verdict and judgment thereon.

2. Deceased, who was the holder of a life insurance policy which provided for double indemnity in case of bodily injury effected solely through external, violent and accidental means, and which would not result directly or indirectly from infirmity of body, had an accidental fall which caused him to receive a cut of one and one-half inches over his eye and a raised bump about the size of a golf ball on his forehead, and when found dead a pool of coagulated blood was found under deceased's head, and where a physician testified that the blow caused death, and another physician testified that death resulted from an occlusion of the heart, and not from the fall. Held: that the trial court did not err in submitting to the jury the question of whether the death of deceased resulted from bodily injury effected solely through external, violent and accidental means, and the further question of whether it resulted directly or indirectly from physical disease.

3. Instructions examined, and held, that they fairly submitted the issues and the law pertinent thereto to the jury.

Green, Farmer & Woolsey, J. B. Bailey, Tulsa, Forrester Brewster, Muskogee, for plaintiff in error.

Kelly Brown, C. A. Ambrister, Muskogee, for defendants in error.

O'NEAL, Justice.

In this action, beneficiaries, under an insurance policy, seek to recover double indemnity under the policy in the event death of the insured resulted from bodily injury effected solely through violent and accidental means. The beneficiaries recovered judgment in the trial court and the insurer appeals.

Gladys Neale and Tom Neale were plaintiffs below, and The Equitable Life Assurance Society of the United States, was defendant, and will be referred to as they appeared in the trial court.

James M. Neale died on or about January 5, 1951. At the time of his death he was the holder of a life insurance policy issued by the defendant company, which provided that the insurer would pay the sum of $6,000 upon the death of James M. Neale, or the sum of $12,000 in the event his death occurred from an accident.

The insurer, upon proof of death, paid the beneficiaries the sum of $6,000, and disclaimed further liability on the ground that the insured did not die as a result of an accident within the purview of the double indemnity provisions in the insurance contract.

The insurer denied liability upon the assertion that the death of deceased did not result 'solely from injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means' as the contract provided.

The record discloses that James M. Neale had a cerebral hemorrhage in 1927. After several months he was able to resume work. In April, 1936, he suffered a fracture of his left leg. In 1949, the leg was again broken. He was compelled to use a brace upon his left knee, and he had to use crutches to assist him in walking. He was a large man, six feet one inch in height and weighed nearly 200 pounds. After receiving the leg injury he would frequently fall, especially when he failed to use the knee brace or crutches.

On the 3rd day of January, 1951, Mrs. Neale, his wife, left the home to visit their son, who then resided at Fort Smith, Arkansas. Several days later she and the son returned to their home. Upon their return to the house they found Mr. Neale lying on the kitchen floor, face down, and beneath his head was a pool of blood the size of a large dinner plate. He had been dead for some hours when found. Upon examination they found a cut over his right eye approximately one and one-half inches in length and a large knot about the size of a golf ball upon his forehead. The right eye was badly swollen and discolored; his eyeglasses were found broken, a portion lying near the kitchen stove, and a part of the eyeglasses was upon the stove; his leg brace was found hanging on the foot of his bed and his crutches were standing in the corner of the kitchen.

Thereafter, and in the month of April, 1951, Dr. Berry and Dr. Hopps performed an autopsy and we shall advert to their evidence infra.

Dr. Berry, who had practiced medicine in Muskogee, Oklahoma for about forty years, testified that the primary cause of the death of Mr. Neale was the accidental fall and the injury which he sustained. Dr. Hopps, a practicing physician since 1939, testified that the heart of the deceased presented a condition of severe arteriosclerosis. Dr. Berry stated that in his opinion the primary cause of Mr. Neale's death was the blow to his head; that he wasn't dead when he fell or his face wouldn't have swelled up and discolored, and that there would not have been the quantity of blood of the size of a dinner plate under his head. He likened the heart to a pump and stated that it quit pumping when it quit going; and from the quantity of blood on the floor, he was of the opinion that his heart was still going when he fell. In answer to the following question: 'And does the cut and injury and the resulting swelling to the size of a golf ball indicate anything, Doctor?' To which Dr. Berry responded: 'Well, that same thing; the heart was pumping, or it wouldn't have brought that extravasation into the tissue.' He testified further that from the autopsy he concluded that one of the coronary arteries of the deceased was entirely occluded, and the other one was only large enough for a small amount of blood to go through it; that this condition of the heart would ultimately cause death but he was of the opinion that Mr. Neale's heart was still functioning, or he wouldn't have bled. Upon cross-examination he testified that the man had arteriosclerosis or a calcification of his blood vessels, describing their condition to an old boiler with a lot of sediment in it around its flues, which ultimately prevents water flowing through it; that if this calcification progressed to the extent of causing an occlusion, the patient would die.

Dr. Hopps, who participated in the autopsy, testified that the major changes were found in the heart, and it presented a condition of severe arteriosclerosis, which involved all of the major blood vessels of the heart, narrowing some of them to a very small opening; that a large vessel in the heart had a recent blood clot within it, which completely obstructed it. He testified as to the cut over the right brow, and of the bruised condition of the right eye; that he examined the skull under these bruises but found no fracture, nor was there any evidence of hemorrhage into the brain. From this examination he concluded and gave it as his opinion, that Mr. Neale died as a result of an occlusion of one of his coronary arteries; that it was much more likely that the heart condition caused him to fall.

The record discloses the following questions were asked and answers given:

'Q. Now, if this man had this condition that you've found there, and he did have a fall or there was some shock to his entire system, wouldn't that tend to accelerate that condition and bring it to a focus? A. It is certainly a possibility. In other words, I couldn't say that such a thing is absolutely impossible. I consider it very unlikely.

'Q. Well, Doctor, put it the other way: You wouldn't say that if you find a man who had a heart condition such as you've found there, and he was living; and he would exercise himself to some way, or in some way or other, have received a blow such as where he had a cut over his eye and a swelling there, which they have described as about the size of a golf ball, showing that he had received a severe blow--wouldn't that tend to accelerate that and bring that to a head, and for example you had---- A. Well, all I can say is that the sudden coronary occlusion is rarely precipitated by a sudden blow or exertion of the sort that produces sudden death.

'Q. But it is sometimes so, isn't it, Doctor? A. Yes, it's possible.

'Q. If you will, just state then just what you did say, Doctor. A. I said I believed that he died as a result of his cardiac condition, or the heart condition; and that I thought it was much more likely that the heart condition caused him to fall than that he fell and that precipitated his heart condition.'

Neither Dr. Berry, as a witness for the plaintiffs, or Dr. Hopps, as a witness for the defendant, had treated Mr. Neale during his lifetime. Their opinions and conclusions were based upon the case history and their knowledge obtained by the autopsy.

The unique circumstances of the case demonstrate that a correct solution cannot be reached solely upon the proof as to the external injuries of the deceased. So, of necessity, proof was submitted by men of science whose conclusions and opinions we have averted to.

In view of the positive evidence of Dr. Berry that the primary cause of Mr. Neale's death was the blow or injury to his head, and the evidence of Dr. Hopps to the effect that the fall as disclosed might result in a coronary occlusion, but that he did not think it did so here, presented a question which was resolved by the verdict of the jury in plaintiffs' favor.

The insurance policy, insofar as the double indemnity feature thereof is pertinent, provides:

'The increased amount of insurance as stipulated on the face hereof, in case of accidental death shall be payable upon receipt of due proof that the death of the insured occurred while this policy...