Michener v. Fidelity & Casualty Co. of New York
| Citation | 203 N.W. 14,200 Iowa 476 |
| Decision Date | 07 April 1925 |
| Docket Number | 36538 |
| Parties | IDA E. MICHENER, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED SEPTEMBER 25, 1925.
Appeal from Pottawattamie District Court.--TOM C. WHITMORE, Judge.
ACTION on the accident insurance policy. From a directed verdict in favor of the defendant, the plaintiff appeals.
Affirmed.
George H. Mayne and Thomas O. Tacy, for appellant.
Tinley Mitchell, Ross & Mitchell, for appellee.
Plaintiff was the holder of the accident insurance policy in question, issued by the defendant company to her. She sued for two accidents, one of which occurred on the 30th of October, 1921, and the other on the 14th of October, 1922.
The first accident for which plaintiff claims damages, grew out of an attempt by her to extricate her automobile when it became stuck in the mud. Her foot slipped, and she fell from the car. She claims that she was injured in the right abdominal region. She was under the doctor's care from that time until the 26th of November, when she was taken back to the hospital, and operated upon on the 29th of November.
As to the second accident, which plaintiff claims occurred on the 14th of October, 1922,--she was cranking her car, and it back-fired. The handle flew back, and struck her in the same part of the body where she claims to have been injured in the first instance. She suffered pain therefrom, and was ill. She was taken to the hospital the next day, and that night was again operated upon by another doctor. She was in the hospital for thirteen weeks, when she was taken to her home. She was unable to do any work for ten or twelve weeks after that.
Many objections are made in the record to the rulings of the court in excluding testimony offered by the plaintiff. While, in many instances, the ruling of the lower court on the admission of the offered testimony was wrong, we do not deem it material to the consideration of this case, as it now stands before the court.
The evidence in the case shows beyond dispute that, at the time this woman was operated upon, she was suffering from appendicitis, and also from abdominal adhesions. It further shows that at least on two or three occasions before the first accident, she had undergone abdominal operations, and shows that, following these operations, adhesions may occur, resulting, in some instances, in obstruction of the intestines.
As hereinafter explained, the burden of proof was on her to show that, at the time the accident occurred, she was free from any bodily ailments which in any way co-operated to cause the damages for which she seeks recovery. Several physicians testify in behalf of the plaintiff, and in no instance does a physician testify that her internal troubles were brought about by the accident. The furthest that any physician goes, is to state that it was possible that her internal troubles were chargeable to the accident; but no witness says that it was even probable that said troubles were so brought about.
The policy issued to the defendant herein limits the liability of the company. It insures the person named against bodily injury through accidental means, resulting directly independently, and exclusively of all other causes. Under the record made in this case, the defendant insists that, under a strict construction of the terms of...
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