Massachusetts Bonding & Ins. Co. v. Duncan

• Decision Date: 04 November 1915
• Parties: MASSACHUSETTS BONDING & INSURANCE CO. v. DUNCAN.
• Court: Kentucky Court of Appeals

179 S.W. 472

166 Ky. 515

MASSACHUSETTS BONDING & INSURANCE CO. v. DUNCAN.

Court of Appeals of Kentucky.

November 4, 1915

Appeal from Circuit Court, Muhlenberg County.

Action by Kate R. Duncan against the Massachusetts Bonding &amp Insurance Company. From a judgment for the plaintiff, the defendant appeals. Affirmed.

E. B Anderson, of Owensboro, and Fred Forcht, of Louisville, for appellant.

W. P Sandidge, of Owensboro, and T. J. Sparks, of Greenville, for appellee.

NUNN J.

On July 1, 1913, David W. Duncan made a written application for, and there was issued to him on that date, a policy of accident and disability insurance, which provided indemnity for loss of life or bodily injury from accidental means, and for disability and loss of time by disease. For accidental death the company agreed to pay $2,500 to Kate R. Duncan, mother of the assured, the appellee herein. On Thursday, August 28, 1913, David W. Duncan died as the result of an alleged accident which happened on Saturday, August 23d. In an action on the policy, Mrs. Duncan recovered judgment for $2,500; and appellant brings the case here for review, complaining of many prejudicial errors which it says the trial court committed.

David W. Duncan was unmarried, 20 years of age, and resided with his parents in Greenville. He was in partnership with his father under the firm name of D. J. Duncan & Son. They were engaged in the insurance business, and were local agents for the appellant. It seems that as such agents they had the power, not only to receive applications, but to issue policies of insurance, and for this purpose they were supplied with the necessary blank forms. It appears that the assured wrote on the same day with his own hand both the application and the insurance policy. These facts were fully and promptly reported to and approved by the company. The policy was issued in consideration of the payment of a monthly premium of $1.50, and was to continue in force for as many consecutive months as the assured might pay same. So far as payment of premiums is concerned, it is admitted that the policy was in force at the time referred to; but appellant claims that the policy is void by reason of false and fraudulent answers made in the application.

By the application, which was written into and made a part of the policy, the assured represented to the company: (1) That he was in sound condition mentally and physically; (2) that he did not then have, and had not had during the past year, any local or constitutional disease. The company refused to pay the policy, and this suit was filed by the beneficiary, Mrs. Duncan, in January, 1914. Among other things, she alleged that, while the policy was in force, her son died from a bodily injury, effected directly and independently of all other causes by direct, external, violent, and purely accidental means. In the following language she explains how the assured received his injury:

"The said David W. Duncan was upon said August 23, 1913, engaged in carrying two large water melons, one under each arm, and while engaged in carrying said melons over a rough stretch of ground, one of said melons slipped forward and caused an injury to his stomach and bowels to such an extent that an uncontrollable hemorrhage resulted therefrom, and from the effects of which the said David W. Duncan died."

At the following April term of court the parties went into trial. During the course thereof appellee offered an amendment, which the court permitted to be filed over appellant's objection. The amendment is as follows:

"The plaintiff, by leave of court, for amendment to her petition herein, and in order to conform to the proof, states that the accidental injury described in the original petition was caused, not by the slipping forward of the melon as alleged therein, but by the strain caused by the carrying of said melons, and the carrying of the melons over the rough or uneven ground over which he traveled while carrying same."

Appellant then traversed the allegations of the amended petition, and affirmatively alleged that the policy provided that, if the assured should be disabled by a strain, the recovery therefor should be $50, and no more. These allegations were controverted of record, but on the ground of surprise the trial was suspended, and the case continued to the September term, when it was tried, with the result already stated.

The following are the facts with reference to the death of the assured: On Saturday noon, August 23, 1913, five days before his death, he bought two water melons, weighing 40 pounds each, from a wagon which stood in the street in front of a neighbor's house. Carrying one under each arm and against his abdomen, he started to his father's home, a distance of some 60 feet. He had to pass over a rough place and a perpendicular step-off, some 12 inches high. The assured told his physician that while so carrying these melons he slipped or fell. There was no one who saw him all of the time he was going home. The man who sold the melons, and Mrs. Martin also, saw him leave the wagon and go diagonally toward his father's front door. He placed the melons on the floor in the front hall and went immediately into his mother's room. She says he was nearly exhausted and breathing with difficulty. In a few moments he recovered somewhat and left the room, going in the direction of a closet in the garden. In two or three minutes his mother thought she heard his calls, and went hurriedly to the garden, and saw him holding himself up against a gate. His mother and sister assisted him to walk through the yard to the back porch. He was so exhausted that they laid him down. Almost immediately he lost consciousness. The neighbors and a doctor were called. When the doctor reached him, he had been placed in bed. The doctor described his condition as one of collapse, with rapid pulse, difficult breathing, and abnormal temperature. He improved somewhat during the afternoon, and was able to sit up awhile. He spent a restless night, but on Sunday was able to eat a light breakfast and dinner. In the afternoon, when he undertook, by his mother's assistance, to leave his bed, he fell to the floor in a faint. In about three hours he began to throw up blood, and also passed a great deal of it from his bowels. The first blood thrown up was decayed, as if it had been retained in his stomach a while; but after that the blood he threw up and that which passed from his bowels was fresh. This continued until his death on the following Thursday. Dr. Koontz, who was first called, did not obtain full details of what had happened, and did not then realize the gravity of the case. When he grew worse the next day, Dr. Slayden was called also. Each of these doctors had for a long time practiced in and were acquainted with the medical history of the family. Being now convinced that there was an internal hemorrhage, they endeavored to find out the place and cause. In answer to their inquiries, the assured said to Dr. Slayden that while he was carrying the water melons he slipped or fell, Dr. Slayden did not remember which, and received a strain where the melons pressed against his abdomen, and he at once become ill.

Briefly stated, the reasons given by the company for resisting payment are that Duncan's death was not due to any personal injury effected by accidental means; that he was the victim of a spontaneous hemorrhage; that at the time the application was made, and for many years theretofore, in fact, all of his life, the assured was in bad health, and in an unsound physical condition, and suffering from a dangerous constitutional disease, technically known as hemophilia, that is, he was what is commonly known as a "bleeder"; that this disease culminated in a spontaneous hemorrhage, and was the sole cause of his death. The peculiar characteristic or symptom of a "bleeder" is that in the event of an injury, causing a wound in the flesh, internal or external, there immediately results a persistent flow of blood, causing weakness and exhaustion, difficult to arrest, and which, if not stopped, will result in death. We understand from the evidence that in such cases, as distinguished from normal persons, the walls of the blood vessels may be thinner; but usually it is a blood condition, whereby it does not coagulate and automatically stop the flow.

The assured made categorical answers to every question set forth in the application. We must assume that such answers, if true, supplied to the company all the information needed or required by it in order to determine whether it would accept the risk and issue the policy or continue it in force. No inquiries were made about his family history, and he was not asked if he was a hemophiliac, or a "bleeder," or if a slight wound subjected him to copious or persistent bleeding; nor was he asked if his physical condition was normal as compared to other people. The question propounded was whether he was in sound physical condition. He answered that he was, and further represented that he was in good health, and to the question, if within a year past he had a constitutional disease, he said, "No."

We are satisfied from the evidence that in carrying the water melons over the rough place he slipped or stumbled, and the strain or pressure thus made against the stomach ruptured a blood vessel. We think it was also made clear that the young man was a "bleeder." The proof shows this to be an inherited characteristic. From the medical testimony it seems that the symptoms are more pronounced in the male line although, as a rule, it is inherited directly from the mother. His maternal grandfather was a "bleeder," and his mother was to some extent. Between 2 and 3 years before the application, three teeth...