Martin v. Interstate Business Men's Accident Ass'n
| Decision Date | 15 November 1919 |
| Docket Number | 32910 |
| Citation | 174 N.W. 577,187 Iowa 869 |
| Parties | ELIZABETH MARTIN, Appellant, v. INTERSTATE BUSINESS MEN'S ACCIDENT ASSOCIATION, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--THOMAS J. GUTHRIE, Judge.
ACTION on an accident insurance policy. Verdict directed for the defendant. Plaintiff appeals. Opinion states the facts.
Affirmed.
William G. Clark and F. L. Groesbeck, for appellant.
Robert M. Haines, for appellee.
The defendant is a mutual benefit life and accident association. On the 22d day of October, 1917, it issued to one John G Martin a certificate of membership, bearing date October 22 1917, whereby it undertook and promised to pay to the beneficiary therein named the sum of $ 5,000, upon the death of said Martin, but only in the event death was caused by accidental means. The plaintiff is the beneficiary named therein, and brings this action to recover the amount therein provided, under the terms of the certificate.
John G. Martin died on or about March 2, 1918. It is claimed that his death was caused by accidental means. The only question presented here is whether or not he came to his death by accidental means.
The plaintiff, in her petition, states her claim in the following language:
"The death of decedent was accidentally caused by reason of certain food taken by the decedent into his stomach while absent from home, which food was accidentally, and without the knowledge of the decedent, of an unwholesome and dangerous character, whereby, without intent on decedent's part, or on the part of the person serving the same, said food accidentally caused decedent's stomach and bowels and the contents thereof to become fermented, and caused a violent fermentation and infection of decedent's bowels, whereby a violent retching of the stomach and bowels ensued, and a foul and dangerous condition of the bowels was so caused, whereby decedent suffered great and dangerous pain, and his system became infected and foul and dangerously inflamed; thus and thereby decedent's death shortly thereafter resulted, and was caused by reason of the facts hereinbefore stated."
The defendant admits that the death of the insured was caused by reason of food eaten by him, and fermentation in his stomach from some cause unknown, but denies that the death was from accidental means.
A jury was impaneled to try the cause. At the conclusion of the evidence, the court directed a verdict for the defendant, and plaintiff appeals.
In the trial of the cause, the plaintiff offered certain evidence to which the defendant objected. Thereupon, the court retired to a private room, out of hearing of the jury, and received the evidence to which objection was urged. After the evidence was given and taken down by the shorthand reporter, the court ruled that it was not competent evidence to be heard by the jury in the trial of the cause. This evidence was all preserved, and is now in the record before us. In the determination of this case, we will consider all the competent evidence offered, as well as that received, although we are of the opinion that the court erred in its ruling on some of the evidence offered, and that it should have been admitted. But since the case did not go to the jury, and since the court heard all the evidence and made its ruling directing a verdict for the defendant, we will treat the evidence as all before this court. If, after giving to all the evidence its fullest consideration, and indulging in all reasonable inferences that could be drawn legitimately therefrom, we find that no verdict for the plaintiff, based upon that evidence, would be permitted to stand, we will not reverse the case for the error committed in its exclusion, although we find affirmatively that it was competent, and should have been admitted. While prejudice is presumed from the exclusion of competent and material testimony in the trial of the cause, and while we ordinarily assume prejudice from erroneous rulings against the complaining party, yet, when we find from the record that, had the error not been committed, the result must have been the same, we cannot say that the error prejudiced any substantial rights of the party against whom it was committed.
If all the evidence offered and rejected, taken with all the evidence received, does not make a case for the jury, it would be idle to reverse the case for error committed in refusing it. This is certain: that, if admitted, it would not have entitled the plaintiff to the relief prayed for; so, in the determination of this case, we will take all the evidence now in the record before us, that which was rejected by the court as well as that received by the court, and determine therefrom whether or not the insured came to his death by accidental means, or rather, whether the showing upon this point is such that the jury could have so found, after carefully and honestly and intelligently considering the same.
For a definition of accident and accidental death approved by this court, see Carnes v. Iowa St. T. M. Assn., 106 Iowa 281, 285, 76 N.W. 683; and Hanley v. Fidelity & Cas. Co., 180 Iowa 805, 823, 161 N.W. 114, and pages following, and cases therein cited.
This brings us to a consideration of the evidence before us.
The deceased, on the day when it is claimed the accident occurred which produced his death, was in the employ of one Zaun & Zaun, merchants in the city of Des Moines. About 10 o'clock on the morning of the 1st of March, 1918, he was engaged in sorting oranges, separating those which were marketable from those which were not marketable. He ate three oranges, just prior to that time. Whether he ate the marketable or the unmarketable oranges does not appear. His business was to note and separate the good from the bad. The oranges which he ate were selected by him from the entire body of oranges in his charge. There is no direct evidence that any of the oranges were unwholesome or unfit for food, except this: After he had eaten these three oranges, he called his brother-in-law, who was working in the same building, to him, and gave him two oranges selected from the pile, and said: "Take these, and put them away for your lunch at noon." The brother-in-law testifies that the oranges handed to him were very large, with a very small part affected; that he cut one, and cut out the affected part, and then tasted it. It seemed to be bitter, and so he threw it away. It is apparent that, since deceased was charged with the duty of selecting and separating the unmarketable oranges from the marketable ones, he had a discriminating judgment upon this point. We may assume, from the fact that he was charged with the duty of separating the good from the bad, that there were some of the oranges that were not marketable: at least, the jury could have found this. It would be a legitimate inference from the facts shown. However, the only direct evidence that any of the oranges in his charge were affected is the evidence of the brother-in-law, touching the oranges handed to him. These oranges tasted bitter, and had a small part affected. At the time the oranges were handed to his brother-in-law, deceased said that many of the oranges he was sorting had a green speck on them, and that would make them unsalable; but there is no evidence that the oranges eaten by deceased were spotted and specked, or that they were not sound oranges. On the morning of the day that he ate these oranges, the testimony shows, deceased was in good health. He returned to his home in the evening, and complained of being bloated, and his stomach was distended, and he was unable to eat much, if any, supper. After supper, he lay upon the lounge, and loosened his belt, and his stomach appeared to be bloated. He said he didn't feel well; that his stomach was all knocked out; that his condition was due to something he had eaten. He continued to get worse, and died about 2 o'clock the next day. The evidence further disclosed that it was the custom of the insured to eat a very light breakfast; that his heartiest meal was the noonday meal; that, because of having eaten a light breakfast, he was always more or less hungry about 10 o'clock in the morning; that it was his custom then to "mince around the store," to eat fruit or cakes or something like that. Whether he did "mince around the store" on that day, or whether he ate his noonday meal, this record does not disclose. He died of acute indigestion, or what is known in medical science as acute gastritis. After he returned home on this evening, in the condition hereinbefore recited, he was given an...
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