Prudential Ins. Co. of America v. Gaines

• Decision Date: 14 January 1938
• Citation: 112 S.W.2d 666,271 Ky. 496
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. GAINES.
• Court: Kentucky Court of Appeals

112 S.W.2d 666

271 Ky. 496

PRUDENTIAL INS. CO. OF AMERICA v. GAINES.

Court of Appeals of Kentucky

January 14, 1938

Appeal from Circuit Court, Garrard County.

Action by Maybel C. Gaines against the Prudential Insurance Company of America to recover accidental death benefits provided in life policy. The defendant filed a counterclaim. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded for new trial.

R. W Keenon and B. L. Kessinger, both of Lexington, and Louis L Walker, of Lancaster, for appellant.

Robinson & Kauffman, of Lancaster, for appellee.

PERRY Justice.

The appellant company issued on January 6, 1923, to Edward C Gaines, of Lancaster, Garrard county, Ky. a policy of life insurance that was in full force at the time of his death on January 30, 1936.

By the terms of this policy, the company insured the life of Edward C. Gaines, subject to the provisions of the policy, and thereby agreed to pay to his wife, Maybel C. Gaines, named therein as beneficiary, the sum of $3,000, upon receipt of due proof of his death in any event, during the continuance of the policy.

In addition to the life insurance thus provided under the regular policy, there was a rider attached thereto and made a part thereof, whereby the company further provided for the payment of an accidental death benefit to the beneficiary named in the policy "upon receipt of due proof that the death of the insured occurred during the continuance of said policy *** as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, provided, However that, no accidental death benefit shall be payable if the death of the insured resulted *** directly or indirectly from bodily or mental infirmity or disease in any form."

It is disclosed by the record, and uncontradicted, that the insured, Edward C. Gaines, on the morning of January 25, 1936, while walking from his home to the Public Square or business section of Lancaster, slipped and heavily fell upon a sleety, ice covered platform upon which he at the time was going to the store of the Elliott Hardware Company. Insured was by the fall so severely injured that he lay unconscious where he fell until regaining consciousness, and, finding himself hurt and unable to walk, he called for assistance to help him get up. Sam Elliott and others in the store, hearing his call, went to his aid and with much difficulty got him up and carried him first into the Elliott store and from there to his home. Dr. Caywood was at once called there to administer to his injury and suffering and soon arrived at his home within about a half an hour after the insured's fall, when he at once made an examination of his condition and injury after which he had him carried to his office where a further examination was made of him to ascertain the extent of his injuries; and also directed an X-ray picture there made of his injury, which showed that he had received a broken shoulder as the result of his fall.

Dr. Caywood states that he had never previous to this occasion been the insured's physician, nor had ever made, nor had opportunity to make, a previous examination of the insured to ascertain his condition or state of health, and did not know what it had been. Dr. Caywood was, however, his only attending physician during the brief period of his injury and suffering following his fall and ending with his death on January 30, 1936.

A death certificate was thereupon filled out by Dr. Caywood, as insured's attending physician, wherein he set out the fact of the insured's death, its date, and also the direct and contributing cause thereof.

A certified copy of the death certificate was sent the appellant, which was received by it as due proof of the insured's death, when the appellee was, as the beneficiary named in the policy, paid the sum of $3,000, the amount called for by the terms of the said policy to be paid her in the event of the death of the insured from whatever cause.

The company, however, refused to pay the double indemnity or additional or accidental death benefit of $3,000, claimed by appellee as due and owing her under the provisions of the rider attached to the policy, as set out supra, upon the ground that the insured's death was, by the proof thereof it had received, shown not to have been the "result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means."

The appellee a few months later, because of the appellant's refusal to pay her this accidental death benefit insurance, provided for by the rider to the policy, brought this action to recover the amount claimed owing her thereunder, by her petition setting out substantially the facts as hereinabove stated; that the policy and rider thereto were issued her husband, the insured, by appellant on January 6, 1923, wherein she was named as his beneficiary; and that while the policy continued and was in full force and effect, the death of the insured, Edward C. Gaines occurred and was caused and brought about by an accidental fall, and resulting bodily injury received on January 25, 1936, which was followed by his death on January 30, 1936. Also, she alleged that his death was the result, "directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means," and that defendant was indebted to her under and by reason of the terms of this rider contract of insurance, the payment of premiums thereunder and the accidental death of the said Edward C. Gaines, in the further sum of $2,999, for which amount she prayed judgment, with interest from January 30, 1936, until paid.

Appellant (defendant below) filed answer and counterclaim, whereby it joined issue by denying all the material allegations of the petition. By a second paragraph it set out a counterclaim for $119, credit owing it for overpayment made by it under mistake as to the age of the insured, induced by error in application. As to this, however, the parties agreed upon allowance of the credit and the same is therefore eliminated as a question for our present consideration.

Such being the one issue joined, plaintiff introduced her proof tending to show that the insured's death was the result of his accidental fall and caused by severe bodily injury received in and resulting from that fall, independently of any other cause.

Dr Caywood, who attended the insured in his last illness, testified that upon the occasion of Mr. Gaines' fall, in which he received this severe injury, he was called to administer to him at his home, and arrived there about a half hour after the accident occurred; that when he then made an examination of him,...