Miser v. Iowa State Traveling Men's Ass'n

• Decision Date: 04 May 1937
• Docket Number: 43803.
• Citation: 273 N.W. 155,223 Iowa 662
• Parties: MISER v. IOWA STATE TRAVELING MEN'S ASS'N.
• Court: Iowa Supreme Court

273 N.W. 155

223 Iowa 662

MISER v. IOWA STATE TRAVELING MEN'S ASS'N.

No. 43803.

Supreme Court of Iowa.

May 4, 1937

Appeal from District Court, Polk County; Loy Ladd, Judge.

This is an action brought by plaintiff as the beneficiary of a certificate of membership held by her deceased husband in the defendant company. The only question involved is as to whether the decedent's fatal injury was sustained by accidental means. The defendant answered by denying that said fatal injury was so sustained. The case was submitted to a jury and a verdict returned in the sum of $5,000, for the plaintiff, and from judgment on such verdict the defendant appeals. Questions incidental to the main controversy will be discussed in the opinion.

Affirmed.

Mills Hewitt, Diltz & Holliday, of Des Moines, for appellant.

Fred Huebner and Stanley G. Swarzman, both of Des Moines, for appellee.

SAGER Justice.

The accident out of which this case grows happened on October 17 1935, at the intersection of Walnut and Seventh streets in the city of Des Moines. Dr. Miser, the insured, started south across the intersection on the west line thereof. Having started across the street, a truck driven by one Block coming south on Seventh street, made a right-hand turn onto Walnut street, in front of Miser. At the same time a car also coming from the north on Seventh street and making a turn in the same way, appeared behind or just to the left of the decedent. It should be noted that Walnut street runs east and west and Seventh street north and south. After Dr. Miser passed the sedan which stopped to permit him to go by, he was confronted by the truck driven by Block, and at this juncture the accident happened. The doctor was seen to grasp his injured wrist, and from thence take a course toward Dr. Smith's office, as will be later outlined. One of appellant's witnesses testified that when Miser was a foot and a half or two feet from the right cab door he raised his arm and struck the glass. At this time this witness was several feet behind the insured, and on the curb waiting to cross in the same direction as Miser had intended to go. Another witness for the appellant testified that she heard a bystander say, at the sound of the breaking glass in the cab door: " * * * Did you see what that man done? He struck that driver of that car." According to the testimony of Block, the truck driver, he was on the left-hand side of his truck at a distance of from four to five feet from Dr. Miser when the latter, as this witness testified, " struck at the window."

It is appellee's thought that the decedent, finding himself confronted by the truck, became startled or frightened, and, in attempting to protect himself from what he thought was a threatened injury, threw up his hand to protect his face. Appellant takes the position that the decedent intentionally and voluntarily struck the glass in the cab window, and as a consequence sustained the very grievous injury which resulted in his death three days later.

This difference in the contentions of the parties indicates the main subject for consideration in the cause; and the result will be determined by the answer to the question, which theory is in accordance with the facts; or perhaps it is more accurate to say, so far as this appeal is concerned, whether or not the question was one which should have been decided by the court as a matter of law or by the jury as a matter of fact.

Unless the situation disclosed by the testimony permits of only one conclusion, or, as the cases frequently state it, reasonable men may not differ from the conclusion to be drawn, then the matter was properly one for the jury. The trial court submitted the question on instructions, and in so doing took, we hold, the right course.

Following the injury, decedent grabbed his wrist and ran, wending his way in and out of the crowd, eastward one block, then north about two-thirds of a block, at which point he reached the east entrance of the Equitable building. Entering he ran to the elevator and was taken without stop to the eleventh floor. Leaving the elevator, he ran into and through Dr. Smith's reception room and into the latter's private office, where his wound was dressed preliminary to his being taken to the hospital for further treatment. While making the trip from the place of the accident to Dr. Smith's office blood was streaming from his wrist. He had a horrified look of fear on his face, appeared very nervous, excited, and distressed, and in pain. Dr. Smith said that he found him in a degree of shock, cold, pale, very rapid pulse, and gasping for breath, as he staggered to the table, holding his right hand. Immediately, or shortly after arriving in Dr. Smith's private office, in response to an inquiry as to " what happened," the decedent said: " I was crossing the street and got caught between two cars, and I thought one of them was going to hit me and I threw my hand up to protect my face."

As to whether this statement was properly received by the trial court as a part of the res gestae is one of the questions which will have attention herein.

Appellant claims much for the fact that from the time decedent sustained this injury he was in full and complete possession of all his faculties, and was acting calmly and coolly, exercising good judgment in getting to his physician, and in every way indicating that he was not, through any stress of excitement, making any exclamations; that he exercised good judgment within his professional knowledge by grasping the injured member for the purpose of stopping the bleeding, and that he turned and, by the shortest and most direct route possible, started to Dr. Smith's office for attention. This is preliminary to appellant's argument that, having this control of himself in the face of his very serious hurt, his statement made to Dr. Smith was not properly res gestæ, but, like other statements later made in the doctor's office, was a reasoned and considered declaration in self-interest-in a word, because the decedent exhibited no panic, his statement made a few minutes after the injury was improperly received by the trial court. Other statements were made, after first-aid treatment and while the doctors were waiting for a taxi to remove the injured man to the hospital. In this later conversation Dr. Miser expressed what seems to us to have been a perfectly natural solicitude as to the nature, extent, and probable permanence of his injury. Contrariwise, this is regarded by the appellant as further evidence that Dr. Miser, hurt as he was, was deliberating as to the possible chance of recovering on the insurance certificate, and, with cold-blooded calculation, was laying his plans to that end.

We do not read the record to any such conclusion. It seems to us to be the most natural thing in the world for a doctor, the tendons of whose wrist have been severed, to be worried and concerned over how far his hurt might impair further activities in his profession; and that he should at such a time be contriving ways and means of collecting on his insurance policy seems so contrary to common experience that we feel the question was one very properly left to the jury.

The case has been very ably and exhaustively argued by counsel, and we have given it the consideration which their labors and the importance of the question deserve.

We direct our attention first to what is perhaps the chief ground of complaint, to wit, the admission of the statement made in Dr. Smith's office. There is no question in the case, as the parties stipulated, other than whether or not the injury sustained by Dr. Miser, resulted through accidental means, as required by article VII of Exhibit B (articles of incorporation of the appellant), which, so far as need here be considered, provides: " * * * and is the holder of Class A certificates or certificates of membership therein and shall, through external, violent and accidental means, receive bodily injuries which shall, independently and exclusively of all other causes result, within ninety days, in the death of the member, his beneficiary shall," receive the benefits provided for, in this case $5,000.

Appellant cites a large number of cases from our own and other jurisdictions as tending to sustain its contention that the statement under examination was not properly received as res gestae. No good purpose would be served by analyzing each case in detail, and they are cited only for the purpose of reference. State v. Deuble, 74 Iowa, 509, 38 N.W. 383; State v. Lewallen, 198 Iowa, 382, 199 N.W. 266; Christopherson v. Chicago, etc., Railway Co., 135 Iowa, 409, at page 417, 109 N.W. 1077, 124 Am.St.Rep. 284; Budde v. National T. Ben. Ass'n, 184 Iowa, 1219, at page 1232, 169 N.W. 766; Stukas v. Warfield-Pratt-Howell Co., 188 Iowa, 878, 175 N.W. 81; Califore v. Chicago, St. P., M. & O. R. Co., 220 Iowa, 676, 263 N.W. 29; Aldine Trust Co. v. National Ben. Accident Ass'n (Iowa) 268 N.W. 507; Shuman v. Supreme L., K. of H., 110 Iowa, 480, at page 483, 81 N.W. 717; Long v. Garey Investment Co. (Iowa) 110 N.W. 26; Pride v. Inter-State B. M. Acc. Ass'n, 207 Iowa, 167, at page 176, 216 N.W. 62, 62 A.L.R. 31; London Guarantee & Accident Co. v. Woelfle (C.C.A.) 83 F.(2d) 325.See, also, 22 Corpus Juris, pp. 458 to 462.

Among these is the Christopherson Case, 135 Iowa, 409, at page 417 109 N.W. 1077, 1080, 124 Am.St.Rep. 284, from which appellant quotes as follows, a...