Provident Life & Acc. Ins. Co. of Chattanooga, Tenn. v. Diehlman

• Decision Date: 19 February 1935
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. OF CHATTANOOGA, TENN., et al. v. DIEHLMAN.
• Court: Kentucky Court of Appeals

82 S.W.2d 350

259 Ky. 320

PROVIDENT LIFE & ACCIDENT INS. CO. OF CHATTANOOGA, TENN., et al. v. DIEHLMAN.

Court of Appeals of Kentucky

February 19, 1935

Rehearing Denied June 11, 1935.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Mary Diehlman against the Provident Life & Accident Insurance Company of Chattanooga, Tenn., and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Jos. S Lawton and O'Neal & O'Neal, all of Louisville, for appellants.

Benj. F. Gardner and Irving Walker, both of Louisville, for appellee.

RICHARDSON Justice.

This is an appeal from a judgment on a jury's verdict in favor of the beneficiary of an accident insurance policy. Lawrence Diehlman, now deceased, was the insured, and Mary Diehlman the widow, the beneficiary. The policy was issued by the Provident Life & Accident Insurance Company of Chattanooga Tenn., insuring the life of Lawrence Diehlman, "against loss resulting from bodily injuries effected directly, exclusively and independently of all other causes through external, violent and accidental means, except when intentionally self-inflicted while sane or insane," etc.

The contentions of the insurance company are "that a peremptory instruction should have been given for it upon the ground that there was a failure to show (1) that there was an accident, (2) that there was no competent medical or other testimonies sufficient to show that the alleged accident contended for by plaintiff was the direct, exclusive cause of death, (3) incompetent testimony that was highly prejudicial, (4) improper argument by counsel of plaintiff of a highly prejudicial nature, sufficient alone to warrant a reversal, and (5) the verdict is flagrantly against the evidence."

We shall dispose of these grounds according to the record. To do so properly and fairly requires a review of the evidence. It substantially shows that Lawrence Diehlman, 58 years of age, about 6 o'clock on the morning of October 4, 1932, was seen by his daughter going down the basement steps, leading from the yard to her home, to resume work in the basement to her home, in which he had previously been engaged, taking down a brick wall. The wall before he began to take it down was seven feet high, and at that time it had been taken down two feet. The steps to the basement were in sight of where his daughter was engaged in the kitchen. He was working immediately underneath the kitchen, and the daughter could hear the noise incident to his work. Shortly after he entered the basement, he appeared at the head of the basement steps. The daughter did not observe before his coming up the steps that he had stopped work. She heard him coughing and also his footsteps as he came out of the basement. She went to the door and spoke to him as he came out. He sat down on the steps, "holding himself, crouched over," and, on being asked by her what was the matter, he responded, "I am hurt, I fell." She stated that at that moment he seemed to be in pain, but he immediately arose, passed through a gate leading out of her back yard into the yard to his home. She remained in the kitchen about ten minutes, when her mother called her. She went to his home, where she found him in a bedroom. Her mother directed a doctor be called. She called Dr. C. G. Russman, who resided in that vicinity, and he immediately came and administered a hypodermic. On his arrival, Dr. Russman examined him. He was dead, but he administered a hypodermic, hoping there was a possibility of reviving him. It was Russman's opinion he was dead at the time. According to Russman, he was "cold with perspiration; his face was ashy; he had a very anxious expression on his face, showing a premonition of death." The only history of his ailment Russman obtained was that he "had a pain in his chest." At the time the members of the family imparted this information, they were "all crying and worried." Dr. Russman directed the coroner be called. Dr. Roy L. Carter, the coroner, was called, and came to the home of Diehlman and found him lying on a sofa or settee. He did not take off Diehlman's clothing. He examined his face and head, "did not observe any mark on the side of the temple; did not see any broken blood vessel or cut." The history as given him was, Diehlman was taken "suddenly sick," came out of the basement, complained of pain in his chest, and "passed away very rapidly." The undertaker arrived at Diehlman's home about noon. He stated there was no mark or bruise of any kind on the head of the deceased, and that, if such mark suddenly appeared on any part of his body, it appeared after death and after the body left his custody. Diehlman's clothing and underwear were wet, and the body was in profuse perspiration, and the condition of his underwear and clothing was due to the perspiration. A certificate filed with the bureau of vital statistics stated his death was due to heart disease, angina pectoris.

The deceased's daughter, who had observed him come out of the basement and who had followed him to his home, testified that, before the doctor and the coroner arrived, Diehlman's face was dirty, and her mother washed it, and, at the time she did so, they noticed a mark--bruise--in the temple and also on the chin. It was fresh; it was not on his face when he went into the basement. The bruise in the temple was "about an inch and a half." The daughter further testified that the coroner did not examine Diehlman's body. He merely opened his collar, "and this is all he did."

The widow of Diehlman claims she saw, before the undertaker came, the bruise in the temple and on the chin, on the right side of his face.

Mrs. Murray, a neighbor, also saw the bruises on the right side of his face. Her statement was that the bruise in the temple was "about an inch or an inch and a half," to which she called Mrs. Englert's attention. A son of Diehlman noticed the bruises on the side of his face; the size and location thereof as given by him were identical to those described by the other witnesses. He claims he saw them before the arrival of the coroner.

The witnesses described the clothing Diehlman was wearing at the time of his death and declared they were dirty and showed the presence of lime, mortar, dirt, and yellow clay, similar to that on the floor of the basement in which he was working.

Henry Freadreacea was connected with Diehlman in the removal of the wall, and had agreed to return about 7:30 or 8 o'clock on the morning on which the latter's death occurred. On his return to begin work in the basement, Freadreacea discovered the absence of Diehlman. He went to the latter's home and found him dead, lying on the bed. He testified that the wall from which Diehlman was removing the brick was about five feet high, and, in order for him to dislodge the brick, it was necessary for him to stand "on a box or something." He could not stand on the ground and work on the five-foot wall. Diehlman used a chisel and a crowbar with which to knock the brick out of place. The son of Diehlman testified that he entered the basement where his father had been at work and found an old chair at the place at which his father was engaged when knocking brick out of the wall. A crowbar and a chisel and other tools were in the basement near the chair.

A number of witnesses who had known Diehlman many years, some of them had engaged in manual labor with him, others had visited his home and associated with him, testified that Diehlman was an active robust strong man, in good health, with no ailments.

It was the consentient opinion of Drs. Arnold, Frey, and Cox, expressed in response to hypothetical questions reflecting the evidence and embracing the facts proven by the testimony of the lay witnesses, that Diehlman's death resulted from a cerebral hemorrhage, proximately caused, or "superinduced, by a fall." The symptoms of angina pectoris as described by these physicians are "gasping for breath, excruciating pain in region of the heart and down the left arm and shoulder;" the pain accompanying it "is very severe"; "a choking sensation--a shutoff of the breath;" and as a general rule "the patient does not struggle"; and the symptoms accompanying an injury on the head sufficient to produce a cerebral hemorrhage, resulting in death are, "a dizziness," "an internal hemorrhage," and "death soon ensues."

The physicians who testified for the beneficiary excluded angina pectoris as the cause of the death of Diehlman. It was their opinion that profuse perspiration does not solely denote angina pectoris; such perspiration, they claim, is generally present when bodily pain is present.

Drs. Russman, Carter, the coroner, and the undertaker agree that angina pectoris was the proximate cause of the death of Diehlman, and that there was no connection between this disease and his alleged fall.

It is apparent the evidence of the parties presents two theories of the cause of the death of Diehlman. That of the beneficiary is that he fell while removing brick from a wall in the basement; the dirt on his face and clothing, the bruise on the right side of his face, indicated he had so fallen, and that in falling the right side of his face, in the temple and on the chin, was bruised; and the fall produced an injury which superinduced a cerebral hemorrhage resulting in his immediate death, independent of all other causes. That of the insurance company is, Diehlman did not fall, did not sustain an injury, and his death was due to angina pectoris. It offered no evidence tending to show there was no dirt on his face and clothing.

The insurance company most strenuously and earnestly contends that the statement of Diehlman to which his daughter testified, namely, "I am hurt, I...