Meyer v. Fidelity & Cas. Co. of New York

• Decision Date: 13 December 1895
• Citation: 65 N.W. 328,96 Iowa 378
• Parties: LIDA M. MEYER v. THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant
• Court: Iowa Supreme Court

65 N.W. 328

96 Iowa 378

LIDA M. MEYER v. THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant

Supreme Court of Iowa, Des Moines

December 13, 1895

Appeal from Scott District Court.--HON. C. M. WATERMAN, Judge.

Action at law upon a policy of accident insurance. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

T. A Murphy and Davison & Lane for appellant.

Cook & Dodge and Julius Lischer for appellee.

OPINION

Deemer, J.

On the twenty-fourth day of December, 1891, the defendant issued a policy of accident insurance, for the sum of five thousand dollars, to one Herman H. Meyer, insuring him against accidental injury occurring within one year from that date and agreeing to pay his wife, the plaintiff herein, in the event of the death of the assured through external, violent and accidental means, the amount of the policy. The policy also provided that the insurance should not cover "injuries, fatal or otherwise, * * * resulting directly or indirectly from intoxicants, anaesthetics, narcotics sunstroke, freezing, vertigo, sleepwalking, fits, hernia, or any disease or bodily infirmity." The insured was a designer of machinery, and at the time of his death was the superintendent of the Davenport Foundry & Machine Company. Prior to his death, he was a man of good health, temperate in his habits, and industrious in his work. On the twenty-first day of October, 1892, he left his home in apparent good health and spirits, to go to the city of Quincy, in the state of Illinois. Arriving at Quincy at 10 or 11 o'clock in the evening of that day, he went to the home of a brother who resided in that city, and passed the night with him. About 8 o'clock next morning, he left his brother's house, and went down into the city to a bank where his brother was engaged in business. Here he remained for about twenty minutes, when he left the bank, in quest of a certain tobacco factory. He was next seen about a block from the bank, by a lady who, with a companion, with whom she was busily engaged in conversation, was coming up the street towards the place where the assured was standing, or, more properly speaking, staggering, as a witness puts it. The attention of this lady was directed to Meyer by his conduct. She says that, when she first observed him, he was standing close to an electric light pole, with his right arm raised and extended toward and about the pole, as if to gain a hold upon it; that he seemed to be making a continual effort to embrace or grasp the pole. His left hand was raised to about the height of his shoulder, as if to raise it to his head. During this time the assured's body had a wavering or staggering motion. The witness did not keep her eyes upon Meyer, but walked some distance after she discovered him, and turned to go into a store which was nearly in front of where he was standing. Just as she turned to enter the store, she heard a thud or sound from behind, which again arrested her attention; and, upon looking around she discovered Meyer lying upon his back, or nearly so, on the brick pavement, almost immediately in front of where he stood when she first saw him. Another witness saw Meyer just as he was falling, and saw his head strike the pavement. A third saw him, just as he was stepping off the edge of the flagging, stagger and fall. This witness does not remember of having noticed him before. He says he does not know and could not tell whether he tripped on the edge of the flagging, or simply staggered and fell. The fall resulted in the fracture of Meyer's skull, from the effects of which he died in a few hours. The defendant refusing to pay the amount of the policy, plaintiff thereupon commenced this action, alleging the issuance of the policy, the death of the assured, and a compliance with all the conditions precedent on her part to a right of recovery. The defendant, in answer, admitted the issuance of the policy, and the death of Meyer resulting from injuries received through a fall, but denies that Meyer died from the direct effects of his injuries received in the fall. It is also pleaded that, at the time of the injury to Meyer, he had an attack of vertigo, fits, or heart trouble, and that the injury and death of Meyer were due to an attack of vertigo, fits, heart trouble, or some bodily infirmity. When the case came on for trial, the defendant, in open court, expressly admitted all the allegations of the petition, except any liability to plaintiff, and denied liability because of the facts stated in the answer, showing that the death of Meyer was the result of an attack of vertigo, fits, heart trouble, or some bodily infirmity, and claimed and was awarded the opening and closing.

Three special interrogatories were submitted to the jury, to which they made answers as indicated. These interrogatories and answers were as follows: "First. Was the falling of H. H. Meyer on the brick pavement at Quincy, Ill., on October 22, 1892, at the time he was injured, caused directly or indirectly from fits, vertigo, or any disease or bodily infirmity? Answer: No. Second. If the falling of H. H. Meyer on the brick pavement was caused directly or indirectly by reason of any disorder in his physical condition at that time, did such condition result from some temporary cause and not from previous disease or bodily infirmity? Answer: Yes. Third. If you answer the last interrogatory 'Yes,' was the disorder something other than fits or vertigo? Answer: Yes." The jury also returned a general verdict for the plaintiff.

The abstract contains several assignments of error, but the argument of appellant's counsel relates to but two subjects: First, it is insisted that the verdict is not sustained by sufficient evidence; and, second, that the court erred in its instructions to the jury. Some other matters are referred to, which we may incidentally mention during the course of the opinion.

As the defendant assumed the burden of showing that the injuries which caused the death of Meyer resulted directly or indirectly from an attack of vertigo, fits, heart trouble, or some bodily infirmity, it is manifest that the verdict is right, unless the evidence adduced to sustain this issue is so overwhelming as to produce the conviction that the verdict was the result of passion or prejudice, or unless, under the undisputed evidence in the case, no two minds of ordinary intelligence could reasonably and fairly come to any other rational conclusion than that the injury and death of Meyer were due to or caused by an attack, as claimed by the defendant. We have already recited enough of the facts to show that the assured was a man of good health, and free from disease, so far as could be discovered by members of his family or by his family physician, up until within a few minutes of the accident. It is true that when first observed just prior to his fall, he was staggering or wavering, as one might do who had an attack of vertigo, or who was subject to fits; but the experts whose testimony was adduced upon trial say that his conduct might be due to a fainting spell, caused by some injury or shock to his system, or to an attack of indigestion, or to a number of other causes. There is no more reason for saying that the accident was due to an attack of vertigo or fits than that it was caused by some slight injury just previously received, or to some other local cause, which resulted in a temporary faint, causing the fall. It will not do to say that the evidence shows beyond controversy that the injury and death were due to an attack of vertigo, fits, heart trouble, or some other bodily infirmity, unless we are prepared to hold that any slight or temporary disorder is a "bodily infirmity," within the meaning of the policy. And this brings ...