Pack v. Prudential Cas. Co.

• Decision Date: 09 May 1916
• Citation: Pack v. Prudential Cas. Co., 170 Ky. 47, 185 S.W. 496 (Ky. Ct. App. 1916)
• Parties: PACK v. PRUDENTIAL CASUALTY CO.
• Court: Kentucky Court of Appeals

185 S.W. 496

170 Ky. 47

PACK v. PRUDENTIAL CASUALTY CO.

Court of Appeals of Kentucky.

May 9, 1916

Appeal from Circuit Court, Boyd County.

Action by Julia Pack against the Prudential Casualty Company. From a judgment on directed verdict for defendant, plaintiff appeals. Affirmed.

John W Woods and A. T. Bryson, both of Ashland, for appellant.

Watt M Prichard and Proctor K. Malin, both of Ashland, for appellee.

CARROLL J.

In March, 1913, Garfield Pack secured an accident and health insurance policy in the Prudential Casualty Company, with a death benefit of $1,000. The beneficiary of the policy was his wife, the appellant, Julia Pack. The policy stipulated that it insured Garfield Pack "against death or loss of time on account of disability resulting directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means. * * * " And under the heading "special death indemnity" there was this clause:

"If sunstroke, caused by the direct effect of the sun's rays, or freezing, septicæmia, or hydrophobia, or the involuntary and unconscious inhalation of gas or other poisonous vapor, accidentally suffered by the insured, shall result directly, independently and exclusively of all other causes, in the death of the insured within ninety days from date of exposure or infection, the company will pay the beneficiary hereinbefore named the principal sum of this policy, and the company shall not be liable under any other provision of this policy for death so caused."

On July 10, 1913, Garfield Pack died, as claimed by the beneficiary, from the effect of sunstroke, and thereafter the beneficiary demanded from the company the indemnity of $1,000, and in addition $50 to which she claimed to be entitled under other provisions of the policy. The company denied all liability, and thereupon the beneficiary brought this suit. On the trial of the case before a jury, after the evidence of both parties had been introduced, the trial court directed a verdict for the casualty company, and the beneficiary prosecuted this appeal.

There are two questions presented for our consideration: First, the proper construction of the contract of insurance; and, second, the sufficiency of the evidence to take the case to the jury.

The petition charged:

"That on the 10th day of July, 1913, while said policy was in full force and effect, the said insured, Garfield Pack, died from the effect of sunstroke, caused by the direct effect of the sun's rays, which he had received previous thereto, to wit, on or about the 5th day of June, 1913, and independently of all other causes; the said sunstroke resulting in the said insured's death within 90 days of the time when he received said injuries. She says that the insured received the said sunstroke while he was working for the Ohio Valley Electric Railway Company, as a section hand repairing track of the said company."

A review of the evidence produced on the trial shows that on Friday morning, July 6th, while at work, Pack complained of being sick; that it was a hot day, and he looked red; that when the men went to eat their dinner under a tree Pack opened his basket but did not eat anything; that a little while after dinner they all went to work, but Pack only worked a short time and then quit; that he did not return to work until Monday; that he was a strong, healthy, fleshy man about 42 years old; that he died on July 10th of pneumonia and had been sick with diarrhea for about 10 days before he died; that when he came home on June 6 he looked red and flushed and did not eat any supper; that that night he complained of his head hurting and of diarrhea; that on the next day he also complained of his head and vomited a time or two; that on the following Monday, June 9th, he went back to work and worked about 10 hours a day each day until June 20th, when he quit and after this went about until June 27th, when he first called in a doctor.

Dr. De Bord testified as follows:

"Q. When were you called to see him during his last illness? A. As well as I remember, it was about the 28th of June, 1913. Q. What was his condition when you called on him at that time? A. Well, when I found him, whenever it was, he had diarrhea and cramping and a headache; complained of headache, flushed face with veins distended in his face frequently; rapid pulse. Q. How did the disease progress then from that time on until his death? Just tell the jury about it. A. Well, the first day I was up to see him it seemed that the diarrhea was hurting him worse than anything else. I think the second or third trip I saw him the diarrhea was checked. He had got better of that; he had got better of throwing up, and for about a couple of days there he got better and about, as near as I remember, the 6th of July, he developed this trouble with his heart and his lungs. Q. Go ahead and describe that. A. Well, he had--it seems that my diagnosis was that of pneumonia. It set in about the 6th of July, about four days before he died, and it ran a rapid gait. His temperature went up, and I called in Dr. Kercheval and we didn't altogether decide whether he had pneumonia. Q. Now, from the history of the case and from the symptoms you observed while treating this man, what would you say caused his death? A. From the history of the case--I got a good, plain history--he had been overheated some few days before, or sunstruck, or overheated whatever you want to call it, all the same. But his history was that he was first struck down with it, and that he got up after awhile and went back to work and worked awhile, and then had to lay off a few days; that he went back to work again, and every time he got in the sun he would get heated and he would begin to weaken down; couldn't stand the heat; that he tried for several days and then quit again. That is a condition of sunstroke; every time he would get in the sun he would weaken down again, and still this diarrhea kept up all the time up until after I got to treating him; and following overheating or sunstroke there is a fever that is called 'thermic fever,' which runs a course-- Q. Just tell what you know about it yourself. Now, considering all the history of the case and what you found there, what would you say caused his death? A. Well, according to history, all the way we can make our judgments--the history of the case, and from what I found there, that the man was overheated in the first place, which led to this other trouble. * * * Q. What about the vomiting and diarrhea? A. Vomiting and diarrhea is things that come after that, that follows afterwards, yes--this may not be present just at the time. Q. You mean be present at the time the person is stricken? A. Yes. Q. What about being overheated? A. Being overheated, you have headache-- Q. How will a person look in the face? A. Flushed face."

On his cross-examination he testified as follows:

"Q. When you visited him, Doctor, on the 28th of June, you found him suffering with diarrhea? A. Yes, sir. * * * Yes, he had this diarrhea or vomiting one, I think, about the second or third trip I went back, and the next trip it seemed like I had got that checked on him. Q. And then after that pneumonia followed? A. Yes, yes; practically. Q. That was your judgment that it was pneumonia? A. That is our judgment. Q. That is your judgment now? A. Yes. Q. And you say the symptoms of sunstroke are yawning and gaping and sighing and fainting? A. Yes, sir; at the beginning, when they are first sunstruck. Q. Very often a person faints from being overheated that don't have a sunstroke? A person will faint from different causes? A. Yes, sir. They are caused by different causes. Q. Generally caused by eating? A. Yes, and different things. Q. I understand that it is generally caused by something a man gets into his stomach? A. I don't know that it is more caused from that than from other things. Q. That one of the causes? A. Yes, one of the causes--getting food in the stomach that won't digest. Q. Bad digestion a cause of diarrhea? A. Yes. Q. And there are a good many causes for vomiting besides overheating? A. Yes, other causes for it. Q. And pneumonia comes from a germ, don't it? A. Some authorities claim it don't, but the authorities in this matter, amongst the best authorities--you can take the best of authorities, and they say that in a great majority of these cases it will develop into pneumonia. Q. Did I ask you that? I asked you if pneumonia didn't come from a germ? A. I told you some authorities claim it does...