Omberg v. United States Mutual Accident Association

• Decision Date: 21 May 1897
• Citation: 101 Ky. 303
• Parties: Omberg v. United States Mutual Accident Association.
• Court: Kentucky Court of Appeals

Page 303

101 Ky. 303

Omberg v. United States Mutual Accident Association.

Court of Appeals of Kentucky.

May 21, 1897.

APPEAL FROM JEFFERSON CIRCUIT COURT. LAW AND EQUITY DIVISION.

O'NEAL & PRYOR FOR APPELLANT.

PHELPS & THUM, AND ALFRED SELLIGMAN OF COUNSEL ON SAME SIDE.

HUMPHREY & DAVIE FOR APPELLEE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

This is an action on a policy of insurance against bodily injuries and death effected through "external, violent and accidental means." The policy was issued by appellee company to Adolph Omberg, and in case of his death alone through the means indicated, the indemnity — $5,000 — was payable to his wife who is here the appellant. Upon the conclusion of the trial below it was the opinion of the court that there was a failure of proof to sustain the plaintiff's contention that her husband's death had been caused through the means and under the conditions provided for in the policy, and a peremptory instruction followed.

The vital question in the case is was the death of Omberg effected through "external, violent and accidental" means, or was his death caused by disease?

Incident to this question is one respecting the competency of certain testimony offered by the appellant and rejected by the trial judge, conducing to show the nature and origin of the alleged accident, resulting, as she contends, in the death of the assured.

And still further is the question, whether, conceding that Omberg's death was the result of the bite of an insect, which produced septic poisoning, as is contended by appellant, payment of the policy is yet to be denied because the insurance was not to extend to or cover accidental injuries or death resulting "from poison in any form or manner" or "contact with poisonous substances?"

And, first, was the death of the assured the result of a disease or of an accident? Omberg was a traveling salesman of Louisville, Ky., and a stout, healthy man of some forty-eight years of age. On or about July 20, 1893, while out on a business trip, he went to his sister's home in Rome, Ga. He was very lame; his foot was swollen and there was an inflamed red spot on one of his toes, with a pimple or place in the center of the spot, presenting the appearance of a puncture or bite of an insect. He grew worse, complaining solely of his foot; within a few days, the 23d of the month, perhaps, a physician was sent for to treat his foot, who found "an abscess at the base of the fourth toe on the right foot, which was very tender and very much inflamed, with a good deal of redness over the whole top and outside of the foot." The spot was about as large as a dime, "quite tender to the touch, with a very deep red color and considerably elevated." In the opinion of the physician the place presented such an appearance as might have resulted "from the sting or bite of an insect." The physician opened the abscess on the day following his first visit, and there was a discharge of a quantity of "rather unhealthy pus." In about a week he had a very severe chill, followed by another some two or three hours later, accompanied with severe vomiting and followed by purging and persistent vomiting, which continued to his death, on the 12th day of August. When asked from what his patient was suffering when he first saw him until his death, the physician answered "some septic poisoning," commonly called "blood poisoning;" and, further, that blood poisoning would cause the chills, vomiting, etc. He further testified that the immediate cause of death was the rupture of an aneurism in the abdominal region, and this was itself induced by the persistent and excessive vomiting. This witness further testified that the bites of insects, such as mosquitoes or flies often caused blood poisoning, and he had often observed parts badly swollen from mosquito bites and bites from other insects; that he observed no traces of any kind of disease in his patient from which he could judge he had heretofore suffered except dyspepsia or indigestion — and these would not have produced blood poisoning. These facts were obtained from a physician who had known the deceased some ten years. A consulting physician of some sixteen years' experience in infirmaries and hospitals was called in and his testimony is corroborative of his colleague as to the presence of blood poison in the system of the patient. It further appears that the physician first sent for, inquired of the patient, who was then only suffering from the inflamed spot on his foot, what caused the trouble, and was told by the patient that "a few days prior to this, early in the morning and before he got out of bed, the cover was thrown off his feet, and a mosquito bit him on the spot, and that he felt some uncomfortable feeling in this toe that prevented him from wearing his shoe."

This proposed evidence was rejected. It also appeared that Omberg made similar statements to his sisters when he came to their house in explanation of his lameness and the swollen condition of his toe and foot. These statements were also rejected.

The body of Omberg was brought to Louisville, where, in about two weeks after his death and when the remains were badly decomposed and affected by the use of embalming fluid, an autopsy was held which failed to disclose any...