Life & Casualty Co. of Tennessee v. Gream

• Citation: 68 S.W.2d 402,252 Ky. 801
• Parties: LIFE & CASUALTY CO. OF TENNESSEE v. GREAM.
• Decision Date: 13 February 1934
• Court: Court of Appeals of Kentucky

68 S.W.2d 402

252 Ky. 801

LIFE & CASUALTY CO. OF TENNESSEE v. GREAM.

Court of Appeals of Kentucky

February 13, 1934

Appeal from Circuit Court, Graves County.

Action by Carrie Gream against the Life & Casualty Company of Tennessee. Judgment for plaintiff, and defendant appeals.

Affirmed.

L. B Alexander, of Paducah, for appellant.

Holifield Gardner & McDonald and Seth T. Boaz, all of Mayfield, for appellee.

STANLEY Commissioner.

The judgment is for $1,000 on an insurance policy covering accidental death under the stipulated terms. The grounds upon which a reversal is asked are not unusual, namely, the court erred in overruling the defendant's motion for a peremptory instruction, the verdict is flagrantly against the evidence, incompetent evidence, incorrect instruction, and improper argument.

For the premium of 5 cents a week, the policy provided, among other indemnities, for the payment of $1,000 to the widow of Pinkney A. Gream on account of loss of life as the result of bodily injuries effected solely by external, violent, and accidental means under certain circumstances. One of those was "by collision of or by any accident to any private horse drawn vehicle or private motor driven automobile in or on which the insured is riding or driving *** provided *** there shall be some external or visible injury on the said vehicle *** and provided *** the collision or accident must occur on a public highway as heretofore defined."

The insured was a coal peddler, selling coal by the scuttle from a one-horse wagon. The accident occurred in the late afternoon September 7, 1932, while he was driving on one of the streets of Mayfield. As he passed A. L. Sasseen, who was also driving a horse, Gream threw up his hand as if to signal Sasseen to stop. He did so within a short distance, and as he looked back Gream was turning his horse around, when for some cause the horse lunged forward and Gream fell backward from the seat into the bed of the wagon. His head or neck struck a coal bucket or shovel. The seat was something like 14 or 16 inches high. The deceased's twelve year old stepson, who was with him, testified to substantially the same thing. When he was taken home, according to his widow Gream did not know anything, and continued in that unconscious state until his death some 36 hours later. When Dr. Taylor first saw him that night, he was sleeping and was not disturbed. The next morning the doctor concluded he had had a stroke of paralysis caused by a blood clot on the brain, which in turn had been caused by the injury he received when he fell backwards into the wagon bed. He had bruises on his shoulder, back of his neck, and at the base of the brain. The doctor's positive opinion was that Gream's death was due to this injury and accident. A number of other witnesses testified to seeing bruises on his body. The wagon was taken home on that Wednesday evening and had not been used when it was examined the following Monday morning. At that time the main front bolster was found to be broken in two where the pin went through it. This was a fresh break.

The defendant introduced Dr. Pryor, who had gone to the place of the accident. He testified that Gream was then having a fit which he presumed to be epileptic. He felt his pulse and looked him over for a minute. The man regained consciousness and asked for a "shot," and, in answer to the doctor's question, told him he had been getting "shots." No professional service was rendered the man by Dr. Pryor then or at any time. He further testified that Gream got up out of the wagon and jumped to the ground when he refused to give him a "shot." The doctor did not detect any injury. Dr. Pryor testified that the one and only way to tell that a patient has a clot on the brain is to perform an autopsy by sawing off the top of the skull. On further examination, he stated that the obstruction of a blood vessel by a clot may also produce paralysis. On the assumption that the insured had had a paralytic stroke on the 7th and died on the 9th, Dr. Pryor expressed the opinion he had an embolism of the brain. He testified that an epileptic fit would not cause that condition, but that the condition which causes fits might produce paralysis. A neighbor testified that two or three months before the accident Gream was at his home hollering and that he jumped off the bed and was down on the floor on his back. But he was drunk then, said the witness. Two or three days before his death a witness related that Gream, in getting on his wagon, sat down too quick and missed the seat and fell on the wheel and from the wheel to the street. It is not claimed that he was hurt then. Before this testimony came in, Dr. Taylor, who had attended Gream and his family for several years, had testified on cross-examination that Gream had had nervous spells for four or five years and could not be held in bed. He had given him treatment to equalize the blood and hypodermics to quiet him. He found no evidence of epilepsy.

The appellant claims it was entitled to judgment as a matter of law because no witness testified that the insured received a fatal injury on September 7th when he fell, and Dr. Pryor testified that he did not do so. No witness testified that the bruises they observed were not there before this accident, and it is argued they may have been received in the...