Gohlke v. Hawkeye Commercial Men's Ass'n

• Decision Date: 01 April 1924
• Docket Number: No. 35498.,35498.
• Citation: 198 Iowa 144,197 N.W. 1004
• Parties: GOHLKE v. HAWKEYE COMMERCIAL MEN'S ASS'N.
• Court: Iowa Supreme Court

198 Iowa 144

197 N.W. 1004

GOHLKE

v.HAWKEYE COMMERCIAL MEN'S ASS'N.

No. 35498.

Supreme Court of Iowa.

April 1, 1924.

Appeal from District Court, Marshall County; B. F. Cummings, Judge.

Action in equity to require defendant to make an assessment upon its members to pay the indemnity due plaintiff, as beneficiary under a certificate of membership issued to one who came to his death by accidental means. From a judgment dismissing the petition, plaintiff appeals. Reversed.C. H. E. Boardman, of Marshalltown, for appellant.

F. E. Northup and R. E. Johnson, both of Marshalltown, for appellee.

VERMILION, J.

The plaintiff is the beneficiary named in a certificate of membership issued by the defendant association to Oscar Gohlke, deceased, some years prior to his death. The by-laws of the association provide, in part, as follows:

“That, whenever a member in good standing shall, through external, violent or accidental means, receive bodily injuries which shall, independently of all other causes, result in death within ninety days from said accident, the beneficiary named in his application for membership, or his heirs, if no beneficiary is named therein, shall be paid within ninety days after the receipt by the association, of proof satisfactory to the board of directors of said injuries and the accidental cause thereof the proceeds of one assessment of two dollars upon each member in good standing, but in no case shall such payment exceed the sum of five thousand dollars.”

Oscar Gohlke died under circumstances to be hereafter stated, and plaintiff brings this action in equity to require the association to make an assessment as provided for in the by-laws to meet the obligation alleged to have arisen under and by virtue of the certificate of membership and the by-laws, by reason of his accidental death. The lower court denied the relief, and plaintiff appeals.

Two questions are presented: (1) Whether the death of Oscar Gohlke resulted from injuries received through accidental means; and (2) if his death resulted from accident, whether it was one for which the beneficiary is, under the by-laws, entitled to recover.

[1] Many of the principal facts are not in serious dispute. Oscar Gohlke died in his room at a hotel in Oklahoma City, on the morning of February 24, 1919. He retired to his room in apparent good health at about midnight. Shortly thereafter he was found strangling, and died in a few minutes.

Dr. Ross testified that he was called by a bell boy and found Gohlke sitting on a chair by the telephone in his nightclothes with his head dropped forward; that he lifted his head and asked him what was the matter; that he tried to talk, but could only mumble and not speak a word plainly, and there was froth coming from his mouth and nostrils; that he (the doctor) obtained help and put him on the bed, and in two minutes he was dead; that he was strangling and could not talk or get his breath; that he gave him a strychnine hypodermic, but he was then dying, and did not live to exceed five minutes after he was called. He further testified that there was an open bottle of sal hepatica, a teaspoon with some of the dry powder on it, and a glass with a couple of ounces of water in it on the table, and that no other medicine was found.

McCarty, a guest at the hotel, occupying an adjoining room, testified that he heard the doctor call for help and rushed to his assistance; that he found Gohlke in a chair in his nightclothes, strangling and choking with foam coming from his mouth and nostrils and the doctor trying to get him to talk; that he never spoke and was in a dying condition; that they lifted him on the bed, the doctor gave him a hypodermic, and he died immediately; that on a table where Gohlke was sitting at the the time of his entrance there was a bottle partially filled with sal hepatica, a spoon with dry powder on it, and a glass with about two inches of water in it.

Torbert, a witness for the defendant, occupied a room across the hall from Gohlke's. He testified that about 12 o'clock at night he heard him joking with the bell boy; that all at once heard him say, “Get me a doctor quick!” and then he said, “Doctor you had better hurry, I am going”; that there was no one in the room, because he heard the bell boy leave; that in a couple of minutes he heard footsteps, looked out, and went into the room; that Gohlke, dressed in his nightgown,was lying on the bed dead; that McCarty and another man were there, but not the doctor; that the latter came in, felt of Gohlke's pulse, and said: “It is too late, he is dead.” That the doctor may have been in the room before and come back.

This is all of the testimony as to the occurrence of Gohlke's death.

On May 1st following, the body was exhumed and an autopsy held. The brain and other organs of the body were found to be normal and with no evidence of disease except some slight kidney trouble, the presence of gallstones, an enlarged heart, some hardening of the arteries, and a complete closure of the glottis, or opening from the pharynx into the larynx, or windpipe.

There is no claim that the condition of the kidneys or the gallstones caused the death. No immediate cause of death was found except the closing of the glottis resulting in strangulation. The question of fact thus presented is: What caused the closing of the glottis and resulting strangulation and death?

The evidence shows that sal hepatica is a well-known and commonly used remedy and is not poisonous. It is an effervescent salt and gives off a gas when it comes in contact with fluid.

Gohlke was 49 years old at the time of his death, was 5 feet, 6 or 8 inches tall, with a girth measure of about 57 inches, and weighed some 250 pounds. Notwithstanding his obesity, he is shown to have been active, to have bowled and walked with no apparent shortness of breath. In the seven years preceding his death he required the services of a physician but once for a few days on account of digestive trouble. He was accustomed to take sal hepatica, and had once strangled when taking it.

It is the claim of plaintiff that immediately before his death deceased had taken a dose of sal hepatica, and that it, or the gas thrown off by its coming in contact with the mucous membranes of the throat, produced such irritation that the glottis closed and he died of strangulation. On behalf of the defendant, it is contended that the closing of the glottis was the result of an œdema, or swelling, caused by high blood pressure and disease of the heart.

As is not infrequently the case, there was considerable difference of opinion among the medical experts who testified as to the cause of death.

Dr. Ross, who was present when Gohlke died, testified that in his opinion death was caused by strangling from taking a dose of effervescent salts.

Dr. Hall, a medical graduate, engaged in laboratory work, who had specialized in post mortem examinations for 20 years was present at the autopsy. He testified on behalf of plaintiff that there was nothing about the heart that would indicate the cause of death; that it was large and the wall somewhat thickened, but not grossly so, and that it was not abnormal for a man of that size and weight; that the glottis was so tightly closed that light was not admitted through the opening; that this indicated the cause of death was by a spasm and swelling of the mucous membranes of the larynx that choked the man to death; that there was nothing else found that indicated any cause of death except strangulation; that he never heard of high blood pressure causing a thickened and closed condition of the larynx such as would result in strangulation; that the closed condition of the larynx could be caused by some powerful irritants or by œdema, swelling, in the lining of the larnyx; acute œdema could be caused by an irritant like sal hepatica taken dry and coming in contact with the mucous lining of the trachea; that the only cause of death he discovered at the autopsy was the irritated and closed condition of the throat; that a post mortem tells nothing about high blood pressure except by inference; that they examined the brain to see if apoplexy had occurred, and there was nothing to so indicate; that the circulatory system presented little evidence of the dangers they had anticipated; that there was some evidence of a sclerotic condition of the aorta, but not enough to explain death. He further testified that if sal hepatica went down the wrong way it might cause an irritation that would result in death, like any foreign substance, like a piece of beefsteak or a fish bone that would get in the windpipe, and that the post mortem examination convinced him that death was so caused.

Dr. Magee, a specialist in diseases of the nose and throat, was present at the autopsy and was called by the plaintiff. He testified that the heart was considerably enlarged, but outside of its size looked normal, as did its muscular structure;...