N. American Accident Ins. Co. v. Caskey's Admr.

• Court: Supreme Court of Kentucky
• Writing for the Court: Drury, Commissioner
• Citation: N. American Accident Ins. Co. v. Caskey's Admr., 218 Ky. 750, 292 S.W. 297 (Ky. 1927)
• Decision Date: 04 February 1927
• Parties: North American Accident Insurance Company v. Caskey's Administrator.

218 Ky. 750

North American Accident Insurance Company v. Caskey's Administrator.

Court of Appeals of Kentucky.

Decided February 4, 1927.

1. Trial — Instruction Authorizing Recovery for Death Resulting from Bodily Injury Held Erroneous, Where Policy Covered Injury by Being Thrown from Horse-Drawn Vehicle. — In action on accident

policy, covering injury through external, violent, and accidental means, if insured should, by being accidentally thrown from private horse-drawn vehicle suffer loss of life, instruction authorizing recovery if he came to death as result of bodily injury through external, violent, and accidental causes, held erroneous, since it should limit recovery to character of accident mentioned in policy.

2. Evidence — In Action on Insurance Policy Covering Death from Injuries from Being Thrown from Horse-Drawn Vehicle, Insured's Wife's Testimony as to Accident Held Incompetent (Civil Code of Practice, Section 606, Subd. 2). — In action by insured's administrator on accident policy covering death from injury by being thrown from private horse-drawn vehicle, testimony of defendant's wife that he was thrown off wagon held incompetent, under Civil Code of Practice, section 606, Subd. 2, prohibiting wife's testimony to any "transaction with, or any act done or omitted to be done" by, husband.

3. Witnesses — Son's Testimony as to Statements Made by Deceased Father Held Incompetent, in Action on Accident Policy Covering Latter's Life (Civil Code of Practice, Section 606, Subd. 2). — In action by insured's administrator on accident policy covering death from injury by being thrown from horse-drawn vehicle, testimony of insured's son concerning statements made to him by father held incompetent, under Civil Code of Practice, section 606, subd. 2.

4. Witnesses — Disinterested Witnesses Held Competent to Prove Decedent's Statements, in Action on Accident Insurance Policy (Civil Code of Practice, Section 606, Subd. 2). — In action on accident insurance policy for death of insured, witnesses not interested in estate of deceased were competent to prove statements made by him, unless such statements were incompetent as being self-serving declarations; Civil Code of Practice, section 606, subd. 2, being inapplicable.

5. Evidence — Nonexpert's Testimony that he Found Bruised Spot on Deceased's Body when Preparing Him for Burial Held Admissible. — Testimony of nonexpert witness, who assisted in preparing deceased's body for burial, that he found bruised spot on deceased's side, but found nothing else the matter with him, held admissible, in action on accident insurance policy, since he testified to physical fact.

6. Evidence — Nonexpert Witness Cannot Testify that he Thought Deceased did Not Have Pneumonia. — Nonexpert held not competent to testify that he thought deceased did not have pneumonia, since existence of such disease could only be determined by exercise of judgment based on training and experience, requiring expert witness.

7. Appeal and Error — After Objection to Testimony is Overruled, Admissibility of Similar Questions will be Reviewed Without Objection Being Taken. — After objection to testimony is overruled, admissibility of subsequent similar questions will be reviewed though they were not objected to, since one objection to particular lien of interrogation is sufficient.

8. Evidence — Nonexpert May Testify as to Apparent Health of Another. — Nonexpert witnesses are competent to testify as to apparent health of another, since such testimony is confined to matters open to observation of witness.

Appeal from Warren Circuit Court.

RODES & HARLIN for appellant.

GEORGE H. GALLOWAY and W.O. RODES for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant, whom we shall call the defendant, issued to J.F. Caskey a policy of accident insurance, and in this action by the administrator of Caskey, whom we shall call the plaintiff, a judgment for $1,000.00 was awarded against the defendant, to reverse which it prosecutes this appeal. In December, 1923, defendant issued this policy to Caskey and thereby insured his life in the sum of $1,000.00 against death resulting, directly and independently of all other causes, from bodily injury sustained through external, violent and accidental means, "if the insured shall . . . by being accidentally thrown from any private horse drawn vehicle . . . suffer loss of life." On April 15, 1924, Caskey was engaged in hauling logs or wood on his farm in Logan county, Kentucky, and it is claimed that he was then seated upon a load of logs driving the wagon, when one of the logs fell off, the horses started, Caskey was thrown from the wagon, and falling upon one of these logs, received an injury to his right side. Caskey was assisted to his home. On the third day after the injury he summoned a physician, went to bed and remained there until April 24, when he died. It is admitted that Caskey died of pneumonia, but there is a sharp issue as to whether that pneumonia was traumatic or the result of an influenza infection. Defendant is asking for reversal because of four alleged errors.

It first complains of the instructions, and its objection to the first instruction is well taken, for by its terms the jury was told to find for the plaintiff if it believed that Caskey came to his death as a result of any bodily injury received through external, violent and purely accidental causes. The defendant did not by this policy insure Caskey against every form of accident, and the instructions should have limited the recovery to that character of accident mentioned in the evidence, and insured against by the policy. To enable the plaintiff to recover, it was necessary that he should establish by evidence that J.F. Caskey while riding on this wagon was accidentally thrown therefrom and thereby received injuries from which, independently of all other causes, he died. Under the instructions given, the jury might have concluded because of the bruise that was shown to be in Caskey's side, that he had sustained an accidental injury and that that injury, independently of all other things, caused his death, and yet the jury might not believe that that injury was received in the manner insured against by the policy. For this reason, instruction 1 was erroneous.

It contends that the widow of Caskey, who was present at the time that it is claimed Caskey was thrown off of this wagon and who testified over the objection of the defendant to that effect, was not a competent witness. As the widow of the insured, Mrs. Caskey was interested in this...