Modern Woodman Accident Association v. Shryock
| Decision Date | 17 March 1898 |
| Docket Number | 7927 |
| Citation | 74 N.W. 607,54 Neb. 250 |
| Parties | MODERN WOODMAN ACCIDENT ASSOCIATION v. CELIA V. SHRYOCK |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HALL, J. Affirmed.
AFFIRMED.
A. R Talbot, for plaintiff in error.
J. H Broady and A. N. Sullivan, contra.
This action was brought in the district court of Lancaster county by Celia V. Shryock to recover the amount of insurance existing in her favor by the terms of a certificate of membership issued to her husband whereby his life was insured against death by accident within ninety days. There was a verdict and judgment as prayed, and for the reversal of this judgment the association prosecutes this proceeding in error.
In the petition it was alleged that May 6, 1892, in consideration of $ 3 as a membership fee paid by William B. Shryock for plaintiff, and of such future payments as might be required under defendant's articles of incorporation, the defendant had made and delivered to said William B. Shryock its policy and certificate of insurance on the life of said William B. Shryock, in the sum of $ 3,000, and that plaintiff was the wife of William B. Shryock and was the beneficiary in said policy. It was further averred that on or about July 2 1892, while said policy was in full force, said William B. Shryock received a personal injury in the city of Omaha, from which injury, shortly thereafter, the death of said William B. Shryock resulted. It was further alleged that due proof of the death of William B. Shryock had been made, but that defendant, nevertheless, had refused to pay or make an assessment for the payment of the amount due plaintiff, or any part thereof. There was a prayer for judgment in the sum of $ 3,000 with interest, which principal and interest equaled the sum for which the verdict was returned. The material portions of the answer were averments that William B. Shryock died of a disease not the result of any injury alleged to have been by him received; that there had been no compliance with the requirements of the policy as to proofs of injury, and that there had been no request for an assessment upon the members of defendant in good standing, under its rules, for the payment of the claim of plaintiff. It was further alleged that the defendant had never made an assessment upon its members for the payment of the claim set out in plaintiff's petition, and that defendant neither had nor would have in its possession any means wherewith to pay the same until such assessment should be levied and collected. There was in the answer the following language: "Further answering, the defendant alleges the fact to be that at the time of making the application for membership to the defendant, plaintiff's intestate, William B. Shryock, represented and warranted to the defendant, as a condition precedent and as a basis upon which the policy sued on herein was issued, that he never had, nor was subject to, fits, disorders of the brain, or never had or was subject to any bodily or mental infirmity; that, relying upon said statements, representations, and warranty that said William B. Shryock did not then or never did have any bodily or mental infirmity, the defendant issued and delivered to him the certificate or policy of insurance sued on herein, but the defendant avers that at the time of making said application and tendering to the defendant said statements and representations and warranties as aforesaid said William B. Shryock did then have bodily and mental infirmities which would tend to shorten life and which, in fact, did produce the death complained of in plaintiff's petition, and that by reason thereof there was a breach of said warranties and conditions precedent which made void the policy issued and sued upon herein, and although said William B. Shryock at that time represented and warranted to the defendant that he did not have any bodily or mental infirmity, yet the defendant charges the fact to be that at that time said William B. Shryock did have fatty degeneration of the heart or heart disease, which would tend to shorten life, and from which weakness and defect of the heart he, the said William B. Shryock, died." There was a reply in denial of each affirmative matter pleaded in the answer. On the trial there was submitted to the jury certain special interrogatories, which, with the answer to each, were as follows:
There was some conflict in the evidence, but as the jury accepted as true that which tended to sustain the theory of plaintiff, it is unnecessary to consider any other in determining whether or not there was sufficient to sustain the special findings above quoted. James M. Robinson was a witness for the defendant in the district court and testified that on July 1 or 2, 1892, he met William B. Shryock about half-past five in the afternoon and, by appointment, still later in the evening. The testimony of this witness in part was as follows:
Q. Now, did he say anything to you up to that time about slipping and hurting his leg?
A. Yes, sir. He told me several times that his foot had slipped and he had hurt his knee.
Q. He told you several times during the two hours you were with him?
A. Yes, sir.
Q. What did you say he said about that?
A. He said his foot had slipped and that he had wrenched his knee and that it was hurting him.
Q. What knee was that?
A. I think it was the left knee, I am not sure, but it was the same knee he had hurt before.
Q. The same knee that was broken before?
A. Yes, sir.
Q. What did he say at that time about having recently removed the splints or bandages that the doctor had on the knee?
A. He said he had been wearing a bandage or a brace or something and that he had taken it off lately, or something to that effect. I don't know how recently he had taken it off.
William Darst, a witness for the plaintiff, testified that he saw William B. Shryock at the store of witness in Omaha about 8 o'clock in the evening of July 1, 1892; that Shryock looked to witness like a man about to faint, was pale and trembling, and complained that he had hurt himself; that in coming up from the depot he had slipped and partially fallen and that it pained him terribly right over his right hip. He kept his hand rubbing his side and acted as if he was sick in his stomach. He was spitting as if he was sick in his stomach. He remained over two hours from the time he came in. Usually witness closed up at 9 o'clock at night, but his reason for not closing at that time, July 1, 1892, was given thus in his own language: "The condition he came in my store and seeing that he was in pain I stayed around an hour later than usual, thinking he would get better, and in fact he did get better; I wanted him to rest." This witness accompanied Mr. Shryock to the Murray Hotel. William Anderson, clerk at that hotel testified that William B. Shryock came to the hotel about 10 o'clock of the night of July 1, 1892, and witness, upon shaking hands with him noticed that Shryock's hand was very cold. Upon being asked about his health, Shryock said he was not feeling well and asked if witness could spare a boy to go out and get some capsules. These were procured, as was also some whisky, and he went to his room. Frank Wigginton, the boy who procured the capsules, testified that they were quinine capsules and that he showed Mr. Shryock to his room. In the afternoon of July 2, 1892, Mr. Shryock was found dead in his bed in the room to which he had been conducted by Wigginton. A postmortem examination was held, and the result of their investigations, as detailed by the doctors who conducted the same, was to the following effect: Dr. Rebert said he found a contusion or abrasion over the right hip of Mr. Shryock; that his heart was large and dilated, filled with dark fluid, blood. The contusion was of recent occurrence. There was nothing in the condition of the remains that would indicate that he would not have lived an indefinite time. The cause of his death was heart failure induced by a shock and injury. The contusion indicated a fall which might have caused the death of Mr. Shryock. The contusion was somewhat larger than the palm of a large hand. In relation to the opinion that Mr. Shryock might have lived an indefinite time Dr. Rebert testified: "I mean by that, if no accident had occurred, no stage of sickness intervened, and in his ordinary regular life, that in all probability his heart would have been capable of carrying on its functions for an indefinite length of time." Dr. Rebert further testified that while a fall, such as was indicated by the contusion to have taken place, would bring on heart failure, death might not follow before thirty-six hours. Dr. Lee testified that he took part in the post-mortem examination described by Dr. Rebert, and that there was found the abrasion or contusion described by Dr. Rebert. Dr. Lee also testified that they found an abrasion of the skin on the knee of...
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