Globe Accident Ins. Co. v. Gerisch

• Decision Date: 23 November 1896
• Citation: 45 N.E. 563,163 Ill. 625
• Parties: GLOBE ACCIDENT INS. CO. v. GERISCH.
• Court: Illinois Supreme Court

163 Ill. 625

45 N.E. 563

GLOBE ACCIDENT INS. CO.

v.GERISCH.

Supreme Court of Illinois.

Nov. 23, 1896.

Appeal from appellate court, Third district.

Action by Maria M. Gerisch against the Globe Accident Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.Chiperfield, Grant & Chiperfield, for appellant.

Abbott & Worley, for appellee.

BAKER, J.

This action was upon a policy of accident insurance issued to Phillip Gerisch, the plaintiff's intestate. The declaration averred that the deceased accidentally severely and fatally strained and injured his body, in the abdominal region, by lifting a box of ashes and cinders, from which strain and injury he died. The cause was tried in the Canton city court, before the court without a jury. After plaintiff had rested her case, the defendant demurred to the evidence, but the court overruled the demurrer, found the issues for the plaintiff, and rendered judgment in her favor for $2,000; and the judgment has been affirmed by the appellate court.

The important question is whether the evidence sufficiently tends to show that the death of the deceased was caused in the manner alleged in the declaration. The statements made by Gerisch to his physician and to other persons in regard to the cause of the injury from which he was suffering were received in evidence by the trial court over the objection of defendant. None of these statements were made until several hours, and most of them two or three days, after the supposed accident. They formed no part of the res gestae, and under no rule of law are they competent evidence. Railway Co. v. Becker, 128 Ill. 545, 21 N. E. 524. Nor is there an exception made in favor of the statement made to his physicians. Had such statement related only to the part of his person that was hurt, his sufferings, symptoms, and the like, it would be competent evidence; but the declaration of the insured as to the cause of his injury is not proper or competent evidence. Whatever the rule may be in other jurisdictions, such is the law in this state. Railroad Co. v. Sutton, 42 Ill. 438;Collins v. Waters, 54 Ill. 485.

But, excluding these statements from consideration, is there sufficient other evidence to establish, prima facie, the case stated in the declaration? The demurrer, of course, admits all that the competent evidence proves or tends to prove. It was the duty of Gerisch, in pursuance of a contract with one Jacobs, to carry out the ashes and cinders from the furnace of the latter's green-house to the street, about 70 feet distant; and he was in the habit of doing so every evening. On the evening on which it is claimed he was injured, he was seen shoveling the ashes and cinders from the furnace into a wooden box, in which he usually carried them out into the street. The box held about 1 1/2 buckets, and was then nearly full. No one saw him lift the box or carry out the ashes. Still the ashes were, as matter of fact, carried out that evening. Although there is no direct evidence that Gerisch lifted the box and carried out the ashes, yet, from the facts and circumstances above stated, the presumption that he did so could justly be drawn. Such a conclusion is both reasonable and natural. About half past 9 o'clock that evening, but just how long after he was seen shoveling the ashes does not appear, he complained of pains in the lower part of the abdomen, which continued to increase in severity until the second day thereafter, when he took to his bed, and a few days later died. Several physicians were in attendance at the bedside of Gerisch, all of whom testified at the trial. It seems that, tww days before his death, as a last resort, they performed a surgical operation upon him, and their testimony is based to a considerable extent upon the information obtained from an examination of the injured parts. They all agree that the cause of his death was intense inflammation and strangulation of the intestines, and that the diseased condition arose from the dropping of the bowels through an adhesive band-an unnatural growth-which extended from the wall of the abdomen across to the intestines. They further agree that some force or muscular shock was required to push the bowels through this band, and they give it as their opinion that some strain or external violence caused the injury which resulted in their patient's death. This evidence is sufficient, when uncontradicted, to make out the point sought to be established by it; that is, that Gerisch was strained or was injured by some external force. There is,...