Shepherd v. Midland Mut. Life Ins. Co.

Decision Date22 June 1949
Docket Number31546.
CourtOhio Supreme Court

Syllabus by the Court.

1. Although a witness may be qualified to give an opinion concerning a matter upon which opinion evidence may be admissible in and pertinent to the determination of an issue as a general rule such an opinion, whether expert or otherwise, may not be admitted when it, in effect, answers the very question as to the existence or nonexistence of an ultimate fact to be determined by the jury.

2. Where an ultimate fact to be determined by the jury is one depending upon the interpretation of certain scientific facts which are beyond the experience, knowledge or comprehension of the jury, a witness qualified to speak as to the subject matter involved may express an opinion as to the probability or actuality of a fact pertinent to an issue in the case, and the admission of such opinion in evidence does not constitute an invasion or usurpation of the province or function of the jury, even though such opinion is on the ultimate fact which the jury must determine.

3. A medical expert's opinion as to the cause of death, when such cause is a pertinent issue, may be admitted, where it appears that the witness attended the person, the cause of whose death is in question, during his illness or examined his body after death.

4. Where the double indemnity coverage clause of a life insurance policy provides that such coverage shall not extend to any instance of death unless the claimant under the policy shows by 'due proof' that such death resulted solely from external, violent and accidental means it is incumbent upon the claimant in an action to recover on such double indemnity clause to show that the death of the insured resulted solely from not only external and violent but accidental means.

5. A presumption of law is equivalent to a substantive rule of law to the effect that a particular fact must be assumed when another particular fact or group of facts exist, unless and until the assumed fact is rebutted by substantial evidence.

6. Where it is shown that death resulted from bodily injury caused by violent and external means, there is a presumption that death did not result from suicide, intentional self-infliction of injury, the criminal assault of another, or other nonaccidental means, but that the death was due to accidental means, in the absence of affirmative proof to the contrary.

7. Where it is shown that an insured under a double indemnity policy of life insurance met his death by external and violent means and there is no ground for an inference that his death was brought about through suicide, intentional self-infliction of injury, criminal assault by a third person or other nonaccidental means, there is a presumption that death was caused by accidental rather than nonaccidental means.

8. The legal presumption applied in such a case stands as a rule of law requiring courts, jurors or triers of fact to reach a certain conclusion in accordance with the presumption in the absence of evidence to the contrary produced by the party against whom the presumption operates. It arises and operates only where the means of causing death as distinguished from the cause of death are unknown. It is a procedural device which will, on the proof of basic facts which bring the presumption into operation, stand in lieu of any evidence of the accidental nature of the means causing death and thus make a prima facie case for the plaintiff, but the presumption cannot prevail against any substantial evidence of the nonaccidental nature of the means. The presumption is not evidence and is not to be weighed as evidence, nor does it regulate or change the burden of proof.

9. Where the evidence is undisputed that a person received violent and external injuries causing his death, but there is no direct evidence as to the means which brought about that injury, the testimony of a fellow-workman, who observed the physical activities of the decedent during a part of the period in which he could have suffered an injury, to the effect that he, the fellow-workman, did not observe any injury accidental or otherwise happen to the decedent, tends only pro tanto to rebut the presumption that the decedent was injured through accidental means.

Appeal from Court of Appeals, Tuscarawas County.

This action was brought in the Common Pleas Court of Tuscarawas County by the plaintiff, appellee herein, as beneficiary under certain life insurance policies on the life of Delbert Newton Shepherd to recover claimed double indemnity thereunder, admittedly recoverable only in case the death of Shepherd resulted solely from external, violent and accidental means. The ordinary indemnity provided for in such policies was paid and is not involved in this action.

About 10 days prior to October 14, 1946, Shepherd, the insured, who resided some distance from the farm of Homer Davidson near New Philadelphia, was employed by the latter to help jack up a barn on the Davidson farm. A third man named Ralph Sherretts was also employed by Davidson for the same purpose.

The three men working together raised the barn with screw jacks, took out wood posts replacing them with tubular steel posts, dug a trench and placed foundation stones in it. The stones varied in length from three to seven feet, the largest being about 18 inches square while the average size was from four to five feet in length and 12 to 14 inches square.

During the 10-day period prior to October 14, 1946, Shepherd stayed at the Davidson farm except on week ends. On Saturday evening, October 12, Shepherd's wife met him at the farm, motored to New Philadelphia where she and Shepherd did some shopping and then went to their home in Belmont county. Shepherd, in apparent good health, did some odd jobs about his home, visited some friends on Sunday and returned to the Davidson farm on Monday morning, October 14, driving his own automobile. During that day he worked with Davidson, digging trenches and putting foundation stones therein. The stones being too heavy to lift were moved by rolling them on planks.

Shepherd complained that Monday morning after he arrived at the Davidson home and likewise in the evening after working hours. Davidson worked with Shepherd during most of the time but was absent part of the time doing his farm duties. Davidson at no time while in Shepherd's presence saw him slip or fall nor did Davidson see anything fall on Shepherd or see anything happen to him.

Shepherd stayed at the Davidson home Monday night and on the morning of Tuesday, October 15, he again complained of pain and a stiff neck. He was unable to work and went home in the forenoon of that day. After he arrived home he complained of pain in his neck and back and experienced difficulty in walking. A day or two later he was examined by a physician who found Shepherd was unable voluntarily to move his arms or legs, but did not find any indication of laceration or abrasion of the skin on his neck. Shepherd's condition grew progressively worse and he died in an ambulance on the way to a hospital on October 21. The attending physician, Dr. Brown, made a post mortem examination by making an incision in the neck and found a fracture of the third of fourth cervical vertebra. At the trial, over the objection of the defendant insurer, this physician was permitted to testify that in his opinion Shepherd's death was caused by a cord injury at about the level of the second or third vertebra with hemorrhage into the brain stem, and that such injuries had been brought about by some external force.

On January 11, 1947, Dr. Max Shaweker, a pathologist, performed a post mortem on the body of Shepherd and found extravasated blood along the upper part of the spine, a blood clot on the cerebellum, a fracture of the second lamina and the processes of the second, third and fourth vertebrae broken off. At the trial, Dr. Shaweker testified over objection of the defendant that this particular type of hemorrhage was caused by trauma and expressed his opinion, based on his examination, that Shepherd's death was caused by 'some violent external trauma to the back of his neck and head.'

There was no direct evidence that Shepherd's death was accidental and likewise none that it was suicide.

One of the insurance policies, upon which this action was predicated, contained the provision that 'the company will pay, in addition to the amount which may otherwise become payable under this policy, the sum of $2,000 upon due proof that the death of the insured resulted directly from bodily injury exclusively and independently of all other causes, that such bodily injury was effected solely through external, violent and accidental means and that such death occurred within 90 days after such bodily injury and prior to the termination of this benefit.' The other policy contained a provision of similar import.

The case was tried to a jury, and at the conclusion of plaintiff's case defendant rested and moved the court for a directed verdict in its favor. The court overruled the motion and submitted the case to the jury, which returned a verdict in favor of the plaintiff. The defendant filed a motion for judgment notwithstanding the verdict and a motion for new trial, both of which were overruled. The court then entered a judgment for the plaintiff.

The defendant appealed to the Court of Appeals, which court affirmed the judgment of the Common Pleas Court.

This court granted defendant's motion to certify the record.

Wright, Harlor, Purpus, Morris & Arnold, Columbus, and Bowers, Stafford & Bowers, New Philadelphia, for appellant.

Fisher, Smith & Renner, New Philadelphia, for appellee.

HART Judge.

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  • Joseph L. Ulrich v. Leanne S. Pumroy, 88-LW-2549
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