Horn's Adm'r v. Prudential Ins. Co. of America

• Decision Date: 10 October 1933
• Citation: 65 S.W.2d 1017,252 Ky. 137
• Parties: HORN'S ADMINISTRATOR v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Kentucky Court of Appeals

65 S.W.2d 1017

252 Ky. 137

HORN'S ADMINISTRATOR v. PRUDENTIAL INS. CO. OF AMERICA.

Court of Appeals of Kentucky

October 10, 1933

Rehearing Denied Jan. 16, 1934.

Appeal from Circuit Court, Estill County.

Action by the administrator of Sid Horn, deceased, against the Prudential Insurance Company of America. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Shumate & Shumate, of Irvine, for appellant.

H. E Hay, of Irvine, and R. W. Keenon, and C. S. Landrum, both of Lexington, for appellee.

STANLEY Commissioner.

Sid Horn, deceased, as an employee of the Louisville & Nashville Railroad Company was insured by the Prudential Insurance Company of America under a group policy. For several years before January 19, 1931, he had suffered with varicose veins but his affliction did not incapacitate him to perform his work as a car repairer. On that day a heavy car door fell upon and severely mashed one or more of his toes. He was unable to return to work the next day, and, according to the contentions of his administrator, from that time until his death on November 11, 1931, he was permanently and wholly disabled so that he, and after his death his estate, became entitled under the policy to the benefits in such cases provided.

Suit was filed by Horn's administrator, who claimed at first the right to recover the stipulated sum on account of his death. By an amendment of the pleadings the claim for death insurance was abandoned and the right to recover judgment was rested solely upon the total and permanent disability provision of the policy. At the conclusion of the introduction of evidence, the trial court directed a verdict for the insurance company. The appeal by the plaintiff presents the propriety of that action, and as a secondary question the competency of certain evidence held by the court to be incompetent.

The certificate of insurance issued to the insured employee, and which depended upon the master policy, stipulated, inter alia:

"Total and Permanent Disability

If the said employee, while less than sixty years of age, and while the insurance on the life of said employee under said Policy is in full force and effect, shall become totally and permanently disabled or mentally incapacitated to such an extent that he or she by reason of such disability or incapacity is rendered wholly, continuously and permanently unable to perform any work for any kind of compensation of financial value during the remainder of his or her lifetime, the amount of insurance payable at death from natural causes will be paid to said employee in monthly installments during two years, the first installment to be payable immediately upon receipt by the company of due proof of such disability or incapacity; in accordance with the provisions of said Policy. The disability benefits will be granted subject to cessation, in accordance with the provisions of the Policy, should such disability or incapacity prove to be temporary and not permanent. The entire and irrecoverable loss of the sight of both eyes, of the use of both hands, or of both feet, or of one hand and one foot, will be considered total and permanent disability of incapacity within the meaning of the provisions of said Policy. Payments under this provision will be in addition to any Special Disability Benefit that may be payable for loss of limbs or eyesight as shown in the schedule on the first page hereof."

It is to be noted that no specific cause for the disability is stipulated. The contract was to pay the indemnity if and when the insured should reach that condition without regard to the cause. The amount payable for natural death and consequently for total and permanent disability is $2,000. Other provisions as to accidental or natural death are not material in this case.

In its answer the defendant admitted that varicose veins with which the insured suffered "gave him material trouble and seriously impaired his ability to perform the duties pertaining to his occupation as an employee" of the railroad company. He had been working for that company about ten years, and had carried the insurance since July 1, 1925. As stated above, on January 19, 1931, a car door weighing about 190 pounds fell on his foot and mashed it. The next morning his foot was swollen, and shortly thereafter it became twice its normal size. Immediately after the injury his leg to the knee became considerably swollen also. He continued to treat his foot, but his condition grew worse. He walked lame, and required a cane until he was put to bed in August. In September he was taken to a hospital, and died on November 11th. According to several lay witnesses, after suffering the injury Horn was unable to work; in fact, he did nothing except to help put on some building paper and assist in laying some flooring for an individual.

The testimony of two physicians was offered, but the court sustained objections to most of it. The excluded portions are here as avowals. Since it is the view of this court that the evidence was competent, we shall consider it in weighing the record upon the question of its sufficiency to take the case to the jury.

Dr. Edwards treated Horn from August 18th to September 10th. The patient gave as part of the history of his case that he had been injured by the door falling on his foot and bruising and wrenching his knee, and that he had gradually grown worse. He had some varicose veins and phlebitis or inflammation of the veins. The blood clotted in the veins around the knee and had to be drained three times. It was necessary to keep the patient under the influence of opiates until this was done and temporary relief thus obtained. The doctor stated that if one suffering with varicose veins should have an injury and it should become infected the circulation would carry the toxins into the injured parts and infect them. From an examination of the patient and the history of the case given by him the doctor expressed the opinion that the injury which he had received caused his death. In addition to presenting his deposition and having most of it rejected, the plaintiff called Dr. Edwards in person to testify. Objection was sustained to the hypothetical question which described Horn's accident and condition as disclosed by other witnesses and asked for an opinion as to whether or not he was able to work or perform the duties as a car repairer from the date of injury. The doctor's answer appearing as an avowal was, "I don't think he was." The witness stated he was not able to work when he saw him, which was in August.

Dr. Robinson gave a deposition in which he testified that he treated Horn at the infirmary in Richmond from September 12th until his death. He described his condition and its development into "a general blood stream infection from which he died." He testified that the cause of his death was this infection which originated in his varicose veins. The court sustained objections to questions asking what history the patient had given him, and to a hypothetical question seeking the doctor's opinion as to the cause of his death. He was not permitted to testify as to the effect of bruises upon varicose veins and similar technical testimony. The answers tend to support the claim of a physical condition proving total and permanent disability.

The foregoing is the substance of the evidence offered by the plaintiff. We may now notice that of the defendant.

Dr. Snowden, the railroad company's regular physician, treated Horn for a bruised and fractured bone in his toe, as he testified, from the time he was injured until February 7th when it seemed to be healed. A week or two afterward Horn came to his office and said he was ready to go back to work and had him fill out some sick or accident insurance papers (which were filed with another company), and he considered him able to go back to work. He was treated at this time only for the injury to the toe, and no examination of his legs was made, as he made no complaint. The doctor never noticed any varicose veins or anything else wrong with him. The foreman under whom Horn had worked testified that he laid off the day after his toe was mashed. Three days thereafter he was laid off by the company on account of the reduction in forces. About February 10th or 12th, Horn reported and said he was in need of and able to work. He was told that he had been cut off, but that his name would be put on the "extra board." There was another reduction in force and his name was taken off that list.

It seems to us that the evidence was sufficient to authorize the submission of the question of...