Helen B. Clark v. Employers' Liability Assurance Co.

• Decision Date: 30 November 1900
• Citation: 48 A. 639,72 Vt. 458
• Parties: HELEN B. CLARK v. EMPLOYERS' LIABILITY ASSURANCE COMPANY
• Court: Vermont Supreme Court

48 A. 639

72 Vt. 458

HELEN B. CLARK v. EMPLOYERS' LIABILITY ASSURANCE COMPANY

Supreme Court of Vermont

November 30, 1900

October Term, 1897.

GENERAL AND SPECIAL ASSUMPSIT, in which the plaintiff as beneficiary sought to recover upon a policy of accident insurance upon the life of Barma A. Clark, her husband. Pleas, the general issue and a special plea setting out that the insured came to his death from spontaneous or natural apoplexy. Trial by jury, Windham County, September Term 1896, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Judgment reversed and cause remanded.

Waterman Martin & Hitt and Kittredge Haskins for the plaintiff.

John Lowell and Clarke C. Fitts for the defendant.

Present: ROSS, C. J., TAFT, ROWELL, MUNSON, TYLER and THOMPSON, JJ.

OPINION

MUNSON

The insured was found lying dead in the road, where the wheels of his wagon had evidently passed over his neck. He was seen by no one from the time he started until after his death, and his movements could be ascertained only from evidentiary circumstances. There was a watering-trough beside the road he had passed over, placed at a level which required the unchecking of a horse to enable it to drink. The body was found about twenty feet from this trough, and the horse a short distance further on. There were tracks which indicated that the horse had been brought up to the trough, and that the deceased was upon the ground at that point. There was also evidence of tracks leading from the vicinity of the trough to the location of the body, along that side of the road on which the trough stood, and a little way from the tracks made by the horse. There was nothing in the position or character of the tracks, as described by the witnesses, that indicated haste or struggle. The body lay upon its back, with feet extended toward the highway ditch. The horse was checked up when found, but the case discloses nothing as to the position of the reins.

In connection with these matters the court permitted the plaintiff to show that the horse had a habit of starting off suddenly after stops of the character indicated, and that it was hard-bitted. The defendant insists that the tracks and the position of the body, as located by undisputed testimony, left no room for an inference that the insured's fall was caused by his horse, and that consequently this evidence as to the horse should have been excluded. If the question were to be passed upon as presented by counsel, it would doubtless be held that the circumstances referred to were neither developed with such precision, nor of a character so controlling, as to require the exclusion of other circumstances having a natural connection with the fact to be proved. But we think the defendant is not entitled to put the question upon this narrow ground. The cause of the insured's death was to be ascertained from evidence entirely circumstantial. The jury were entitled to the aid of every fact that entered into the situation of the deceased at the time of his catastrophe. The scope of legitimate inquiry included, not only the strength and activity of the man, the steepness of the grade, the character and condition of the surface, the style of the wagon and the amount of the load, but the disposition and habits of the horse in matters affecting its conduct and management under such circumstances. These facts were all material to the inquiry; and the admission of any of them against the defendant's objection could not put the court in error, even if it ultimately appeared that some of the others were so controlling as to render it certain that those objected to had nothing to do with the catastrophe.

The court properly excluded so much of Dr. Campbell's answer to interrogatory five as related to the manner of Atherton Hall's death. It is fairly apparent from the answer, especially when read in connection with other parts of the deposition, that it was hearsay. But counsel contend that if there was any uncertainty in regard to this, the adverse party should have called attention to it at the time of taking by a specific objection, so that the uncertainty could have been removed by further inquiry. We think, however, that it was the duty of the party taking the testimony to see that enough appeared to show its competency, and that a specific objection before the magistrate was not required to entitle the plaintiff to raise this question on trial.

The question as to Atherton Hall's having had any heart trouble called for a matter of fact and not of opinion; and it is possible that the mere fact that the family physician did not know of his having had heart disease was evidence tending to show that he did not have it. But it is not necessary to inquire as to this; for the fact that Atherton Hall did not die of heart disease was not material, unless the circumstances were such that proof that he did not die of heart disease would tend to show that he died of apoplexy; and the previous answers as to the manner of his death having been excluded, it was not error to exclude this. It does not appear that there was any evidence then in the case as to the manner of Atherton Hall's death.

One Childs testified to a conversation had a few days after the insured's death with William B. Clark, a son of the deceased and a witness for the plaintiff, in which Clark spoke of his father's having recently had dizzy spells and trouble with his head. Childs was an insurance agent, representing companies which had risks on the deceased; and he was cross-examined at some length for the purpose of showing his interest. In the course of this examination, he was asked if he did not take an active part in the matter from the time of the insured's death until the time of the trial, or until his company settled. Upon objection being made the question was withdrawn, whereupon an exception was noted to the asking of the question; and it is now objected that the last clause of the question embodied an inadmissible fact, the use of which was altogether unnecessary to the purpose of the examination. It is, in truth, difficult to see how it became necessary to make use of this fact in showing the interest of the witness. Plaintiff's counsel insist that the question was harmless because it did not indicate whether the interest of his company was by way of an accident policy or a life policy. But in a later stage of the cross-examination questions were asked which tended strongly to solve the doubt. The court has heretofore indicated its purpose that cases shall not be tried upon irrelevant and prejudicial matters improperly brought before the jury by question or argument. It is doubtless true that the objectionable features of questions of this character are sometimes due to inadvertence, and that this must be taken into consideration in determining the proper application of the rule to an exception of this character. But as the case stands it is not necessary to consider the matter further.

The defendant's motion that a verdict be directed in its favor, for that upon the whole evidence no right of recovery was shown, was properly overruled. It is claimed, first, that the evidence excludes the possibility that the insured's fall was caused by his horse. It is said that the position of the body and the location of the tracks show conclusively that he was not struck by the horse or shaft. But if this be conceded, it does not follow that the horse had no connection with the fall; and the allegation that the deceased was cast or thrown upon the ground did not confine the plaintiff to proof of a direct blow. In the absence of any evidence as to the reins, they may be presumed to have been left as reins are usually left under such circumstances....