North American Accident Ass'n v. Woodson

• Decision Date: 27 November 1894
• Docket Number: 187.
• Citation: 64 F. 689
• Parties: NORTH AMERICAN ACC. ASS'N v. WOODSON.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F. 689

NORTH AMERICAN ACC. ASS'N v. WOODSON.

No. 187.

United States Court of Appeals, Seventh Circuit.

November 27, 1894

W. H Barnum, A. B. St. John, S. A. French, and D. W. C. Merriam for plaintiff in error.

W. M Jones, D. V. Samuels, and W. I. Culver, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

BUNN District Judge.

This is an action brought by the defendant in error, a citizen of Missouri, against the North American Accident Association, a corporation organized under the laws of Illinois, and a citizen of that state, doing business and having its office at the city of Chicago, upon a policy of insurance dated October 6, 1891, issued by said association, insuring C. C Kemper, then a citizen of Edgerton, Mo., now deceased, against the effects of bodily injury caused solely by external violence and accidental means. The policy, after providing for insurance against injuries of a temporary character, contains this provision:

'(6) Or, if such injury alone shall result in the death of the insured within ninety days thereafter, the association will pay $5,000 to his estate, if surviving, or, in the event of prior death, to the legal representatives of the insured members, according to the by-laws.'

The declaration charges that during the continuance of the policy, on the 23d day of April, 1892, Kemper sustained bodily injury, of the character defined in the policy, which resulted in his death on or about the 2d day of May, 1892, and demands judgment for the sum of $5,000. The defense is that Dr. Kemper did not come to his death as the result of bodily injury caused by external violence, but as the result of disease or suicide. A trial by jury resulted in a verdict and judgment for the plaintiff.

There are 25 assignments of error, but we do not deem it necessary to consider them all. The first one relates to the admission of the decedent's own declaration, made shortly after the supposed accident, as to the cause of the injury. The theory of the plaintiff's case is that the insured, on the 23d day of April, 1892, at his house at Edgerton, Mo., went upon a ladder at the back of his house for the purpose of fixing an eaves through; that while on the ladder it slipped, and he fell to the ground, receiving an injury, from the effect of which he died on the 2d day of May following. The account of the supposed accident is shown by the testimony of W. B. Munford, in the following transcript from the record:

'It was in the afternoon of the 23d of April. Dr. Kemper and I were together. We talked about a gutter running along the west side of his house to this little portion of it which I was telling about,-- about it leaking. He wanted to raise that little gutter so as to force the water towards the north end of the house. He took a piece of board about the length of that photograph, and measured it so as to set it on the corner of the house. Then we went outside, and took a ladder and some nails and a hammer, and put the ladder up against the side of the house, and Dr. Kemper went up the ladder with this little piece of board and nails and hammer. He nailed it there, and then came down the ladder and went into the house. When we got into the house, he said: 'I don't think that you set that gutter right. I don't believe you elevated it high enough.' 'O, yes, I am satisfied of that,' I answered. But he said: 'I don't think so. I am going to get some water and pour it into that gutter, and see.' He filled a cup with water, and went out the back door of the house, and went around the north side of the house, and came around, directly through the house, to the west room. Leading out from the west room was a window, and I saw Dr. Kemper go around the house when I was in this west room. I heard a grating sound on the side of the house; as a matter of fact, right at the house,-- right at the window where we had left the ladder; and I heard a sound, a grating sound, on the side of the wall; sounded like the fall of the ladder on the ground; and through the window I saw Dr. Kemper, pale and half bent over. He kind of half straightened up and started around the house. I started hurriedly back through the house to him. He looked as though he was hurt. Getting into the door, I said, 'You are hurt, Kemper.' He said, 'I fell from that ladder. * * * ' I saw that he was pale, and I put my hand on his shoulder and said, 'I think you are hurt very badly, Kemper.' He was standing perfectly still after he entered the door. I didn't see anything at first. I examined his head here (indicating the back), if I mistake not. He was standing there. He did not tell me where he had fallen, and I naturally examined the man, as that used to be my business. I have practiced as a physician. * * * I saw-- I am not definite, for myself, whether it was on the right or left side, but my impression is that it was on the right side of the cheek, here, and face, over there (indicating), was a red spot, first fiery red, and puffed and red, and I said, 'You have hurt yourself,' and he said, 'Yes; and I walked around then into the other portion of the house, and I said, 'Kemper, if you will sit down, I will go and get you some liniment, or something, to rub your neck for you.' He says, 'Yes, I fell on my neck and shoulders.' He said, 'I fell right on my neck and shoulders,' and I said, 'You had better let me get you some liniment, and rub you.' He said, 'No, no.' He would not permit me to do it. He says: 'I will get over it shortly. I am getting over it.' And we then proceeded to straighten up these rooms. Q. Did you go outside, and see if the ladder had fallen? A. Not at that moment; not at that time. It was possibly an hour after I went out of the house; a half an hour after I went out of the house and saw it. I saw it before I went out of the house. Well, we went and straightened up these rooms I am telling you about,-- these two rooms,-- the back room and the front room. Dr. Kemper and myself had been straightening up things generally on that day; house-cleaning ever since morning; just straightening up the house. I was helping him as I had done for two or three years. I straightened up the back room, and went into the front room, and was fixing things there, and Dr. Kemper was lying around during all of that time, and I said: 'You had better let me do these things. I can do it,' 'No'; he insisted upon helping, you know. He went to get an old picture. It looked about three feet, I reckon, two feet, or about two and one-half feet,-- and was going to hang it up. Then he set it down behind the chair, against the wall. On the chair he put the box. He was a short man. He was going to get upon that chair and hang that picture up. He got up onto the chair, and then upon the box, and then he reached down for this picture, and lifted it up to hang it up. He fell again right on the floor. I was in the room at the time piling on top of a bookcase a lot of old Puck's magazines, and one thing another. I turned to him, and I says: 'Kemper, I told you you were hurt, and you had no business to go on top of that box. I will do it myself.' I says: 'Keep away from these things. I want to hang the picture up.' He went into the back room, and I went to the cistern to get a drink of water. ' I don't remember doing anything more that day. It was pretty well along in the afternoon.'

The witness also testified that the ladder was eight or nine feet long. Also, as follows:

'When we went to supper, Dr. Kemper sat down beside me, and I noticed that he sat down with difficulty. He was stiff when he sat down. He didn't say anything. We had our supper and got up to go. He said nothing about his injury at that time to any one. He had the appearance of a man who was stiffened up. He sat down with difficulty, and got up with difficulty. I stayed with him that night, and remained until Monday morning. Q. Now, state what his physical condition was up to the time you left him. A. I saw no change in the man. He was still stiffened up. He sat down with difficulty, and got up with difficulty. Q. To refresh your recollection, did you ever see him hold his head, or complain of dizziness, or anything of that kind? A. I do not remember about that. The condition was the same, as I remember it. I asked him Monday morning how he was feeling, and he said nothing to me. I asked him how he felt, and he said, 'As to the soreness on my back, it is all gone, but my neck and shoulders still hurt me.' That is all.'

All the testimony in regard to Dr. Kemper's own declaration of the cause of the accident was objected to by defendant's counsel, admitted against such objection, and exception duly taken. The first assignment of error relates to the admission of these declarations, it being contended by the defendant's counsel that such testimony was incompetent. We think it was properly admitted as part of the res gestae, within the principles of Insurance Co. v. Mosley, 8 Wall. 397.

Seven assignments of error, numbered from the fifth to the eleventh, inclusive, relate to the admission of evidence of expert witnesses concerning the cause of Dr. Kemper's death, in answer to hypothetical questions framed upon a supposed state of facts not appearing in evidence at the time the questions were put, and not proven at any time on the trial. This testimony, against defendant's objection was introduced by means of depositions which had been taken before the trial, mainly in the state of Missouri. Several physicians residing in Missouri were examined, and their testimony taken, presumably on the supposition that the supposed facts upon which the answers were predicated would be proven by means of other witnesses on the trial. Some of these facts were proven,...