Hall v. Federal Life Ins. Co.
| Decision Date | 21 May 1934 |
| Docket Number | 18098 |
| Citation | 71 S.W.2d 762 |
| Parties | HALL v. FEDERAL LIFE INS. CO. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.
“ Not to be published in State Reports.”
Action by Lillie M. Hall against the Federal Life Insurance Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
McAllister, Humphrey, Pew & Broaddus, of Kansas City, for appellant.
D. N Taylor, of Kansas City, for respondent.
This is an action on a policy of insurance, issued on May 21, 1929, insuring plaintiff’s husband, Robert Henry Hall. Plaintiff was the specified beneficiary in the policy in case of the death of the insured by accident. Insured died on May 12, 1931, as a result of an accident. There was a verdict and judgment in favor of plaintiff in the sum of $2,140.07, and defendant has appealed.
The policy provided for a premium of $1.00 for the first year and $1.25 for the second. It contained a clause reading as follows:
Insured, on April 17, 1931, was employed as the driver of a dump wagon in connection with the grading of a street in Kansas City. The work was being done by means of a mechanical excavator pulled by a motor-tractor, the excavator bringing up the dirt on a conveyor and discharging it into the wagon. The driver of the wagon drove under the conveyor alongside of the excavator, each vehicle moving simultaneously.
On the afternoon of the said day Hall had just driven his wagon under the elevator of the excavator for loading when the doubletree of the wagon broke, causing it to suddenly stop and resulting in Hall being thrown from the board upon which he was seated against the wagon and down into the wagon bed. After the wagon stopped the excavator kept moving, resulting in large chunks of dirt falling therefrom upon Hall.
The wagon which insured was driving weighed 2,200 pounds, empty. It had what is called a fifth wheel, which appears to be a horizontal wheel axis connecting the two front wheels and axle to the bed. This enables the front wheels to turn freely under the bed. Dr. Jones called to see insured at his home after the accident and found that the latter had a badly bruised leg on the left side between the knee and the hip. The doctor attended insured about five days and the latter was taken to the hospital, where he died. Insured’s leg was opened at the hospital and a large blood clot taken out. This condition of his leg was caused by a severe bruise which bursted the blood vessels. The certificate of death introduced by plaintiff showed the principal cause of insured’s death to be pulmonary ambolus and the contributory cause to be "hematoma left leg-lump of dirt fell on leg."
Dr. Jones testified at the trial that the death could have been caused either by the injuries that insured sustained from his fall from the seat in the wagon or by the large lumps of dirt which fell upon him.
It is insisted that the court erred in refusing to sustain defendant’s demurrer to the evidence because: "Insured’s death did not result directly and independently of all other causes from the disablement of a horse-drawn car or farm wagon, but from a separate and distinct instrumentality or agency, to-wit, dirt thrown from an excavator."
In this connection it is claimed that the undisputed testimony shows that insured’s death was caused by the heavy chunks or lumps of dirt falling upon his leg. Our attention is called to the certificate of death introduced by plaintiff, which states that "lump of dirt fell on leg," and plaintiff’s letter to the defendant, stating, "they let the load of dirt come down on him and injured him, crushing all the blood vessels and ligaments in his left leg from the hip to his knee."
It will thus be seen that the contention is that insured’s injury did not result from the breaking of the doubletree on the dump wagon but from the heavy dirt coming from the excavator. We think there is no merit in this contention. There is evidence that insured was thrown against the wagon and if it was this that caused his injury, resulting in his death, we would assume that defendant would not urge that the breaking of the doubletree was not the proximate cause of that event. However, it is more or less speculative as to which...
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