National Life & Acc. Ins. Co. v. Hedges

• Decision Date: 28 March 1930
• Citation: 27 S.W.2d 422,233 Ky. 840
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. HEDGES.
• Court: Kentucky Court of Appeals

27 S.W.2d 422

233 Ky. 840

NATIONAL LIFE & ACCIDENT INS. CO. v. HEDGES.

Court of Appeals of Kentucky

March 28, 1930

Rehearing Denied May 27, 1930.

Appeal from Circuit Court, McCracken County.

Action by Lena Hedges against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

L. B Alexander, of Paducah, for appellant.

J. B Allensworth, of Paducah, for appellee.

WILLIS J.

The Transylvania Casualty Insurance Company issued an accident policy to Alonzo Hedges, by which it agreed, in the event of the death of insured from accidental means, to pay $5,000 to the beneficiary. The mother of Hedges was originally designated as beneficiary, but later his sister, Lena Hedges was substituted for the mother. If the premiums were paid in advance, an annual addition of 10 per cent. of the principal sum was made until such additions amounted to 50 per cent. of the initial principal sum. The National Life & Accident Insurance Company reinsured the risk, and collected the premiums for several years. Lena Hedges sued the National Life and Accident Insurance Company to recover $7,500 upon the policy, alleging that the insured accidentally fell against the sharp corner of a table in his room and sustained injuries from which he died within a few hours. The jury on the first trial failed to find a verdict, but at the second trial a verdict was returned and a judgment rendered in favor of the plaintiff for $7,500, being the full amount of the policy, with the 10 per cent. addition for five years. The insurance company appeals. Numerous grounds for reversal are urged, which will be considered in the course of the opinion.

It is first insisted that incompetent testimony was permitted to go to the jury. In order to understand the argument advanced by appellant, it is necessary to state the facts. There was testimony tending to show that Hedges was a strong man regularly employed in his trade as a plasterer. He had lived for some time at a hotel in Louisville, and, on the morning of January 11, 1928, entered the dining room for breakfast and then returned to his room on the third floor. In about ten or fifteen minutes from the time he left the dining room he returned to the clerk's desk in a cramped or stooped position, holding his hand over his left side, apparently in great agony, and stated that he had tripped and fallen against the corner of a small table in his room. He made further explanations which the court did not allow the jury to hear. Appellant argues that the statements of the witnesses describing the condition of Hedges, and his own declaration as to the cause, were not competent testimony. It was proven that there was in the room of Hedges a small table about two feet square with sharp corners. The obvious suffering of Hedges could not be accounted for except by his statement respecting the accident. The pain continued during the day with increasing violence until evening when death ensued. A lady applied liniments and hot compresses to his side and observed a red spot between his hip and lower rib. The competency of declarations of an injured person has been the subject of much consideration by the courts. In Fidelity & Casualty Co. v. Cooper, 137 Ky. 544, 126 S.W. 111, 114, a similar question was presented. Cooper was a passenger train conductor in good health. He fell into a turn-table pit sustaining some cuts and bruises to his chin, hands, and chest. He continued to suffer, but made a one way run the next day, being unable to make the return trip. The pains in his chest increased, and within a few days he died of pneumonia. A bruised spot appeared on his breast below the right nipple. He made a statement to the first person he met after he climbed out of the pit, the exact time not being shown. In response to a complaint concerning the competency of that testimony the court said: "The court properly admitted in evidence the statements of Cooper made to the first person who reached him just after he climbed out of the pit. His face and his hands were bleeding, and his statement then, as to how he had received the injuries a few seconds after the accident occurred, was properly admitted as part of the res gestae. Precisely this question was before the United States Supreme Court in Travelers' Insurance Co. v. Mosley, 8 Wall. 408, 19 L.Ed. 437. There the insured went downstairs, and when he came back was suffering, and said that he had fallen down the stairs. The evidence was held competent. The ruling in this case has been followed by us in several cases. Petrie v. Cartwright, 114 Ky. 103, 70 S.W. 297, 24 Ky. Law Rep. 903, 59 L. R. A. 720, 102 Am. St. Rep. 274; L. & N. R. R. Co. v. Molloy, 122 Ky. 219, 91 S.W. 685, 28 Ky. Law Rep. 1113; I. C. R. R. Co. v. Houchins, 125 Ky. 483, 101 S.W. 924, 31 Ky. Law Rep. 93, and cases cited."

In the case decided by the Supreme Court of the United States, cited by the court (Travelers' Insurance Co. v. Mosley, 8 Wall. 408, 19 L.Ed. 437), the conditions were just the reverse of those here appearing, as the insured had descended the stairs and upon returning to his room stated that he had fallen. In Travelers' Protective Association v. West (C. C. A.) 102 F. 226, the injured man came from the basement of a drug store and stated that he had bumped his head on a protruding gas pipe. In the case of Omberg v. U.S. Mutual Association, 101 Ky. 303, 40 S.W. 909, 911, 19 Ky. Law Rep. 462, 72 Am. St. Rep. 413, this court quoted from Mr. Bliss in his work on Life Insurance (2d Ed.) p. 633: "'In a case where the action was brought on an accident policy, the supreme court (evidently referring to the Dabbert Case ) passed upon the question of the admissibility of the declarations of the insured as to the injuries he had suffered and the mode in which they were incurred. They held that the declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnished evidence of a present, existing pain or malady, to prove his condition, ills, pains, and symptoms, whether arising from injury by accident or violence. If made to a medical attendant, they are of more weight than if made to another person. So is a declaration, made by a deceased person contemporaneously, or nearly so, with a main event by whose consequence it is alleged that he died, as to the cause of that event. The views adopted in the cases cited from Ohio and Kansas seem most in accordance with correct principles."'

It will be observed in the opinion in that case that the court indicated a disinclination to extend the doctrine in so far as narrative declarations were concerned further than to admit them when made to a physician by whom the patient was being treated. The res gestae rule is closely related, but distinct from that respecting subsequent statements, and has for its sanction the spontaneous impulse of the injured person, when the declaration follows so soon after an injury that no time or motive for the fabrication of a story could be presumed. In Louisville R. Co. v. Johnson, 131 Ky. 277, 115 S.W. 207, 208, 20 L. R. A. (N. S.) 133, the court said: "No hard and fast rule can be laid down as to the admissibility of evidence as a part of the res gestae. The facts and circumstances *** are different, and the courts have come to the point of adjudging this question as it is presented by the particular case under consideration." In Cincinnati, N. O. & T. P. R. Co. v. Evans, 129 Ky. 152, 110 S.W. 844, 846, 33 Ky. Law Rep. 596, it appeared that a declaration had been made by the engineer, who was concerned in causing the injury, in about a minute thereafter. It was made in response to information that he had killed a brakeman, and was to the effect: "That is the way whenever I get mad. I either hurt or kill somebody." The court said: "In McLeod v. Ginther 80 Ky. 399, 4 Ky. Law Rep. 276, there was a collision between two passenger trains. To the first man who met him the conductor of one of the trains said: 'I had until 10:10 to make Beards.' The evidence was held competent. In L. & N. R. R. Co. v. Shaw, 53 S.W. 1048, 21 Ky. Law Rep. 1041, Shaw had fallen from a passenger train. A man near by heard his cries, and went to him. What he then said to this man, the first person to reach him while the departing train was still in sight, was held admissible as res gestae. In Brown v. Louisville R. R. Co., 53 S.W. 1041, 21 Ky. Law Rep. 995, the declarations of the plaintiff at the place where she fell were admitted, but her declarations while passing down the street on her way home were rejected. In Floyd v. Paducah R. R. Co., 64 S.W. 653, 23 Ky. Law Rep. 1077, the declarations of the motorman at the place of the collision just after the accident were admitted. In L. & N. R. R. Co. v. Molloy, 91 S.W. 685, 28 Ky. Law Rep. 1113, 122 Ky. 219, a passenger train struck a vehicle at a public crossing. What the driver of the vehicle said to the first man who got to him and who ran to him as soon as he could was allowed as res gestae. In Rex v. Foster, 6 C. P. 325, a statement made by the deceased as to the cause of the accident as soon as he was picked up after he had been run over was admitted as res gestae. In Insurance Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437, the deceased went downstairs, and, when he returned to his room, complained of his head hurting him, and said that he had fallen down the steps. The evidence was admitted as part of the res gestae. We do not see how this case can be distinguished from those cited. The statement of the engineer was in effect a declaration that he was mad, and that the jerk of the train which threw Evans off was due to this fact. It was not a bare expression of...