Sachs v. Independence Ins. Co.

• Decision Date: 23 January 1948
• Citation: 208 S.W.2d 61,306 Ky. 385
• Parties: SACHS v. INDEPENDENCE INS. CO.
• Court: Kentucky Court of Appeals

208 S.W.2d 61

306 Ky. 385

SACHS v. INDEPENDENCE INS. CO.

Court of Appeals of Kentucky

January 23, 1948

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division; Roscoe Conkling, Judge.

Action by Ruth G. Sachs, executrix of Joseph G. Sachs, deceased against the Independence Insurance Company on an accident insurance policy. Judgment for defendant, and plaintiff appeals.

Affirmed.

Steinfeld & Steinfeld and L. H. Hilton, all of Louisville, for appellant.

Peter Hayburn & Marshall and Gavin H. Cochran, all of Louisville for appellee.

REES Justice.

Joseph G. Sachs, Jr., died on January 1, 1945. Ruth G. Sachs, his executrix, brought this suit against the Independence Insurance Company to recover $2,250 under an accident policy which insured the deceased '* * * against death or disability resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means and sustained by the insured in the manner following:

'Part Three.

'By the wrecking while on a public highway of any automobile * * * within which the insured is riding * * * in a seat regularly constructed for a passenger * * *, and such injuries so sustained shall result, within thirty days from the date of the accident, in any of the specific losses set forth in this Part Three, * * *.'

The policy contained this provision: 'This insurance does not cover * * * (13) death, disability or loss caused or contributed to directly or indirectly by * * * any disease, infirmity * * * or physical impairment * * *.'

The case, by agreement, was tried on law and facts without the intervention of a jury, and the trial judge, pursuant to a joint motion of the parties, separated his findings of fact and conclusions of law. Judgment was entered in favor of the defendant, and the plaintiff's petition was dismissed. The plaintiff filed a motion and grounds for a new trial which the court overruled, but she took no exception to the conclusions of law as required by section 332 of the Civil Code of Practice. The appellee takes the position that any alleged errors in the trial court's conclusions of law cannot be reviewed on appeal since no exceptions thereto were filed, and the judgment therefore must be affirmed.

The appellee's position is correct to the extent that grounds for reversal based on alleged erroneous conclusions of law arrived at by the trial judge cannot be considered, Income Life Insurance Company v. Anderson, 250 Ky. 367, 63 S.W.2d 1, but the case involves a question of law and a question of fact and the motion for a new trial saves the question of the correctness of the finding of facts and the inferences to be drawn therefrom. Schaaf v. Brown, 304 Ky. 466, 200 S.W.2d 909. For example, if a case is submitted to a jury under erroneous instructions, not excepted to, the errors in the instructions are not reviewable on appeal, but a motion for a new trial will enable the court to determine whether or not the verdict is sustained by the evidence.

The evidence in this case shows that Joseph G. Sachs, Jr., a lawyer by profession, died on January 1, 1945, at the age of 51 years. Prior to March, 1938, he was apparently in good health and performed all the duties incident to the practice of his profession. Some time after January 1, 1938, while in Washington, D. C., he was taken ill and was advised by a physician to consult a heart specialist. In March, 1938, after his return to his home in Louisville he consulted Dr. Morris Weiss, an eminent heart specialist, who found him to be suffering from a condition of the arteries around the heart which Dr. Weiss diagnosed as coronary arteriosclerosis with angina pectoris. At Dr. Weiss' suggestion the insured entered the Baptist Hospital at Louisville for a complete rest, and on March 24, 1938, while in bed in the hospital, he suffered, as stated by Dr. Weiss 'a complete blockage of one of these sclerotic coronary arteries, a condition called coronary thrombosis.' Mr. Sachs remained in the hospital until May 25, 1938, when, at the suggestion of Dr. Weiss, he went to Florida for further rest. He remained in Florida until July 27, 1938, when he returned to his home in Louisville and resumed the practice of law and his normal way of living with certain restrictions prescribed by Dr. Weiss, whom he consulted periodically for checkups with respect to his heart. He had several attacks of angina pectoris during the ensuing years, usually following overexertion, but none of the attacks was serious. He always carried nitroglycerin tablets with him at his physician's direction. In September, 1944, while in Cleveland on business, he fell and fractured six ribs. On his return to Louisville he consulted Dr. Weiss who made an electrocardiographic examination of his heart, and found that the accident had not affected it. In the early part of December, 1944, the insured made a business trip to Washington, D. C., in behalf of one or more clients. He left Washington on December 23, and stopped in Cincinnati, Ohio, where he visited his married daughter. He left Cincinnati on the afternoon of December 25, 1944, in an automobile driven by his daughter. While proceeding west on Taylorsville Road near the city limits of Louisville a collision occurred between the automobile in which he was riding and an automobile driven by Mrs. A. W. Williams, Jr., which was proceeding in the opposite direction. The road was wet and slippery, and Mrs. Williams' car skidded while she was trying to pass the car ahead of her and the left front fender of her car struck the left front fender of the car in which Mr. Sachs was riding. According to Mrs. Williams, both cars were 'practically at a standstill,' when the collision occurred. The two cars were damaged to some extent, but nothing was said or done at the time indicating that any of the...