Guardian Life Ins. Co. v. Robison

• Citation: 278 Ky. 678
• Parties: Guardian Life Ins. Co. v. Robison.
• Decision Date: 19 May 1939
• Court: United States State Supreme Court (Kentucky)

278 Ky. 678

Guardian Life Ins. Co. v. Robison.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

May 19, 1939.

1. Insurance. — In action on provision in life policy providing double indemnity for accidental death, whether insured had struck his head against wall or some other object in basement of house was for the jury.

2. Insurance. — In action on provision in life policy providing double indemnity for accidental death, evidence sustained that insured received wound on head by accidental means within terms of policy.

3. Evidence. — In action on provision in life policy providing double indemnity for accidental death, where there was evidence that insured was in good health before accident, hypothetical questions which included assumption that insured was in good health prior to alleged accident were not improperly propounded to medical witnesses, though there was evidence that insured had had high blood pressure prior to accident.

4. Evidence. — Hypothetical questions may be based on any state of facts that any of the testimony sustains, though there be conflicting testimony.

5. Evidence. — In civil cases, the law does not require that a cause of action or defense or other fact be free from doubt and though jury may not be thoroughly satisfied or convinced, still they may recognize that there is a preponderance of evidence, or at least substantive and probative evidence, tending to establish or refute any asserted fact or theory.

6. Insurance. — If insured was afflicted with high blood pressure,

or other disease, prior to alleged accident, and accident set in motion events resulting in death, accident was proximate cause of death within provision of life policy providing double indemnity for accidental death.

7. Trial. — A peremptory instruction is proper only when the facts proven and inferences reasonably deducible therefrom fail to furnish any evidence of probative character, and jury may only speculate as to the true facts.

8. Insurance. — In action on provision in life policy providing double indemnity for accidental death, whether insured's death resulted from accidental injury to his head was for the jury, notwithstanding that no autopsy was made as provided by policy, and that evidence of medical witnesses allegedly showed no more than mere suspicion that death resulted from injury so that jury was left to speculate as to cause of death, since even if autopsy had been made, doctors still could only express their opinion as to cause of death.

9. Insurance. — In action on provision in life policy providing double indemnity for accidental death, evidence sustained finding that insured's death resulted from accidental injury to head.

10. Insurance. — In action on provision in life policy providing double indemnity for accidental death, where petition alleged accidental death and notice thereof to insurer, but insurer merely denied liability for payment of double indemnity for accidental death, further proof respecting notice to insurer that death was accidental was waived.

11. Insurance. — In action on provision in life policy providing double indemnity for accidental death, instruction authorizing recovery in event death was result of dog bite was properly refused under the evidence.

12. Insurance. — In action on provision in life policy providing double indemnity for accidental death, instruction substantially in language of policy fairly submitted issues involved and rendered other instructions unnecessary.

Appeal from Jefferson Circuit Court.

Wilbur Fields for appellant.

Frank J. Dougherty and L.H. Hilton for appellee.

Before B.H. Farnsley, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE RATLIFF.

Affirming.

In July, 1921, the appellant issued a policy of life insurance to Henry David Robison, deceased husband of appellee, who was the named beneficiary of the policy. The policy provided for a payment of $2,000 for death, and further provided that an additional sum of $2,000, or double indemnity, would be paid:

"Upon receipt of further due proof that such death resulted directly and independently and exclusively of all other causes from bodily injuries affected solely through external, violent and accidental means * * * provided however, that this Double Indemnity shall not be payable if the insured's death resulted * * * directly or indirectly from bodily or mental infirmity, poisoning or infection (unless such poisoning or infection occurred in connection with or in consequence of accidental bodily injuries) or illness or disease of any kind."

The insured died on August 11, 1937. Appellant paid the $2,000 for his death, but refused to pay the double indemnity provided for under the clause of the policy quoted above, whereupon appellee instituted this suit to recover under the double indemnity provisions of the policy, alleging in substance that on or about July 31, 1937, the insured, while performing certain chores in the basement of his home, accidentally struck his head against certain pipes and projections affixed to the house in which he lived, thereby sustaining visible contusion or wound, severely injuring his head and other parts of his body, and thereafter, on or about August 11, 1937, the death of the insured occurred, which resulted directly, independently and exclusively of all other causes from bodily injuries, effected solely through external, violent and accidental means, and due proof of the facts set forth in petition was furnished to appellant.

Later, by amended petition, appellee alleged that on or about August 6, 1937, the insured was accidentally bitten on the middle finger of his right hand by a dog, thereby sustaining certain wounds, etc.; that the death of the insured resulted directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means, from accidentally striking his head against certain pipes or other projections, as alleged in the original petition, or from being accidentally bitten by a dog, but plaintiff does not know which of them is true, but she does state that one of them is true, and, therefore, pleading said facts in the alternative.

A motion to require the plaintiff to elect which of the theories she intended to prosecute was overruled. However, the action of the Court in overruling said motion is not stressed or discussed in brief of counsel, hence we give it no further consideration.

Appellant filed its answer, denying the allegations that the death of insured resulted from accidental means, within the terms of the policy, and further denied that proof of alleged facts, set forth in petition, was furnished to it. It further plead as a defense that the death of the insured resulted from illness or disease, and affirmatively plead that plaintiff had not supplied defendant with due proof that the death of insured resulted from accidental means as alleged in the petition, and provided for in that clause of the policy.

By subsequent pleadings issue was joined and a jury trial had, resulting in a verdict and judgment thereon in favor of appellee for the sum sued for, and to reverse that judgment appellant has prosecuted this appeal. The grounds insisted upon for reversal are: (a) That the trial court erred in overruling appellant's motion for a peremptory instruction, because there was no competent testimony that insured died from accidental causes within the terms of the insured's policy sued on; (b) that no proof was furnished appellant that the insured's death resulted from accidental means, within the terms of the policy, and (c) the court erred in refusing to give instructions offered by appellant. We will discuss these points in the order named.

The insured was a salesman for the Bloemer Food Sales Company and resided in Bowling Green, Kentucky. According to the evidence of appellee, wife of insured, on the 31st day of July, 1937, the insured and their seventeen year old daughter, Wilhemia Robison, were in the basement of their home engaged in storing certain merchandise, and after they had been there a short while insured came up out of the basement and made certain statements to her, but the court excluded from the jury what insured told the witness. She further said that she parted his hair and saw a spot on his head where he "bumped it, and it was all red up there." She further said that there was a lump on his head but the skin was not broken; that he was able to continue his work the following week. On the following Saturday, August 7, the witness said her husband was as well as he ever was so far as she observed; ate breakfast and went to the voting place and voted in the primary election, which was being held on that day; that he came back and got the truck and made one business call, and then returned to the house and laid across the bed and said he was tired. He remained there from about 10:00 a.m. to 3:00 p.m., and some time between three and four o'clock he tried to talk, but could not, and she then called in Dr. Eldon Stone. He remained at Bowling Green until late Monday afternoon when he was taken to Louisville to a hospital and there attended by Dr. Frank Stites. He never regained consciousness and died Wednesday morning, August 11th.

Wilhemia Robison testified that there was a platform erected in the basement on which her father stored his food merchandise, and that she was with him in the basement on July 31, at the time he received his injury, and after they had been in the basement a short while her father "bumped" his head; she said she did not see him do it, but heard a noise like a "thump" and he exclaimed, "Oh," real loud, and immediately said he had hurt his head, and went right on upstairs and showed the wound on his head to her mother, and the latter inspected it.

On cross examination the witness was examined in reference to the location or place in the basement where her father was when the alleged...