Neely v. Provident Life & Accident Ins. Co.

• Decision Date: 26 June 1936
• Docket Number: 19,20
• Citation: 185 A. 784,322 Pa. 417
• Parties: Neely et al. v. The Provident Life and Accident Insurance Company, Appellant
• Court: Pennsylvania Supreme Court

185 A. 784

322 Pa. 417

Neely et al. v. The Provident Life and Accident Insurance Company, Appellant

Nos. 19, 20

Supreme Court of Pennsylvania

June 26, 1936

Argued May 28, 1936

Appeals, Nos. 19 and 20, May T., 1936, by defendant, from judgments of C.P. Dauphin Co., Jan. T., 1933, Nos. 605 and 640, in cases of David T. Neely et al. v. The Provident Life and Accident Insurance Company of Chattanooga, Tennessee; and Alice W. Neely v. Same. Judgments affirmed.

Assumpsit on insurance policies. Before FOX, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiffs. Defendant appealed.

Error assigned was refusal of judgment n.o.v.

The judgments are affirmed.

John A Chambliss, of Sizer, Chambliss & Kefauver, with him Arthur H Hull, of Snyder, Hull, Hull & Leiby, for appellant.

Paul G. Smith, of Nauman, Smith & Hurlock, with him William H. Neely and Charles C. Stroh, for appellees.

Before KEPHART, C.J., SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE MAXEY:

Plaintiffs are beneficiaries in certain policies of accident insurance issued by the defendant to Dr. Edgar C. Neely, now deceased. One policy insured "against the effects of bodily injuries sustained directly, solely and exclusively through accidental means" in the principal sum of $15,000 and weekly benefits. The other policy insured in the principal sum of $1,500 and weekly sickness and accident benefits "against loss of life, limb, limbs, sight of time, resulting without other contributing cause from bodily injury . . . which is effected solely by the happening of a purely accidental event." Since the plaintiffs in the two cases claimed under the same policies, a stipulation was filed to try both cases together, and, in the event of a verdict for the plaintiffs, the latter by stipulation agreed as to how the proceeds should be divided.

The insured died on October 3, 1932. Plaintiffs' averment was that "on or about August 20, 1932, while Dr. Neely was treating a patient, a piece of glass from an ampoule accidentally became imbedded in the forefinger of his right hand and that as a result the finger [later amputated] became infected with septic poisoning," which proved fatal.

Defendant denied these averments and declared "that leukemia and diabetes fundamentally predisposed to the gangrene of the right forefinger, requiring amputation thereof." Defendant set forth that the insured did not die as a result of septic poisoning but "from broncho-pneumonia, with leukemia as a secondary or underlying cause." Webster's New International Dictionary, 2d ed., defines "leukemia" as "a morbid state due to derangement of the blood-making organs and characterized by an excessive number of leucocytes [white corpuscles] in the blood."

After trial the jury returned a verdict for plaintiffs in the sum of $18,975. Defendant made a motion for judgment n.o.v., having at the trial presented a point for binding instructions in its favor. The motion for judgment n.o.v. was later overruled. This appeal followed.

On August 21, 1932, Dr. Neely showed his right index finger to Miss Hancock, who was a registered, trained nurse attached to his office and who was in his employ for five years. Upon examining his finger she found a small puncture about the size of a pin head between the first joint and tip of his finger. Around this puncture there was an area of inflamed flesh about half the size of a dime. It was brought out on cross-examination of this witness that Dr. Neely had told her that he had loosened the flesh with a knife around the puncture. Miss Hancock sterilized a surgical knife, probed the wound, and therein felt a gritty substance of some kind which she was able to move backward and forward. She treated the wound with lysol and mercurochrome. She saw the wound the next day, at which time the inflammation had increased. She and Dr. Neely then probed it. She treated the wound until August 29th when Dr. Neely consulted a physician. Dr. Neely was confined to his bed on September 3d and on September 5th was taken to the hospital where the wound in his finger was incised. Upon returning to his home he was confined to his bed and left it only when he went to his physician's office, until September 9th, when the inflammation had progressed just beyond the third finger and a few red streaks appeared beyond this joint. On September 16th he was taken to the hospital; the inflammation had increased and red streaks appeared upon his arm. On this day his finger was amputated. He returned to his home on September 17th and he was thereafter confined to his bed, and died on October 3d.

Dr. Lenker testified that when Dr. Neely came to him as a patient, he found him suffering intensely with pain. The witness gave as his opinion that the puncture that he described was caused by "external violence of some kind." After describing his patient's condition, he testified that the center "of infection was the site of the injury, the opening in his finger." He said the patient "was suffering from an infected hand, which later on developed into an infection which extended up his arm, which resulted in blood poisoning or what we call septicemia." He was asked: "How did the infection get in his finger," and he answered: "Through the opening in his finger."

Dr. Smith testified that after the incision was made on the 5th of September, Dr. Neely showed signs of improvement, "then the infection seemed to progress until the 16th." He described Dr. Neely as suffering from "an infected wound of the finger." When asked his opinion as to what caused Dr. Neely's death, he answered: "Infection of the finger, followed by a blood stream infection."

The jury was justified in coming to the conclusion from the evidence presented to it that the insured died of blood poisoning which was caused by an infection in his right forefinger. As to the further and fundamental question of whether or not this infection of the forefinger was caused by an accident, plaintiffs had to rely upon circumstantial evidence. As to that the learned trial judge said in his charge to the jury: "The several circumstances relied upon to support the fact [in issue] cannot be presumed, but must be established by proof of the same weight and force as if each were itself the main fact in issue, which here is 'Was there an accident?'" The court then called attention to the fact that the evidence as to the accident was largely that of Miss Hancock, the nurse who probed the puncture she saw in the doctor's right forefinger and who felt therein a movable, gritty substance. In view of the fact that a movable, gritty substance is not ordinarily found in a person's right forefinger, the jury were permitted to infer that this substance entered the finger by accidental means. In Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644, we said: "The operative facts of the insurance policy sued upon were 'external, violent and accidental means' causing the insured's death, and any evidence, whether direct or circumstantial, that tends to prove the operative facts, is admissible. . . . Causes of action are always set forth affirmatively and if they are to prevail they must be supported either (1) by facts tending to prove directly the cause of action pleaded or (2) by legitimate inferences from circumstances which have met the tests of admissibility." In Hill v. Central Accident Ins. Co., 209 Pa. 632, 59 A. 262, whether or not the gunshot wound which caused the death of the insured was caused by a pistol accidentally or intentionally discharged, was left to the jury to decide from the attendant circumstances. Greenleaf on Evidence, 15th edition, section 13, was quoted as follows: "In civil cases it is sufficient, if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove. . . . In both cases [civil and criminal] the verdict may well be founded on circumstances alone, and these often lead to a conclusion more satisfactory than direct evidence." In Urian v. Equitable Life Assur. Soc., 310 Pa. 342, 165 A. 388, the jury were permitted to infer from circumstances whether the inhalation of the gas which caused the death of the insured was accidental or intentional. In Pomorskie v. Prudential Life Ins. Co., 318 Pa. 185, 177 A. 783, an accident policy case, this court held that the issue was for the jury on evidence that the body of deceased was found with signs of head injuries apparently caused by a fall, and an autopsy revealed no indications of death from disease. In Mars v. P.R.T. Co., 303 Pa. 80, 154 A. 290, we stated that where a fact is deducible as a reasonable inference from the facts and conditions directly proved, it cannot be classed as a mere conjecture or surmise or guess, and that "in both the civil and criminal law, circumstantial evidence is competent evidence." In Com. v. Harman, 4 Pa. 269, 273, Chief Justice GIBSON declared: "All evidence is more or less circumstantial, the difference being only in the degree." He used an illustration in which the cause of death was inferred, because, as he said, "we cannot account for the death on any other supposition." Chief Justice BIGELOW, in Com. v. Jefferies, 7 Allen (Mass.) 548, 563, said: "The process of ascertaining one fact from the existence of another is essential to the investigation of truth, and prevails in courts of law as well as in the ordinary affairs of life." In Gray v. Com., 101 Pa. 380, in which a defendant was on trial for his life, Mr. Justice PAXSON said: "We are not jurors and are not called upon to weigh the evidence . . . further than to say . . . whether there is sufficient evidence to submit to the jury upon a particular question of fact." We also declared that absolute...