Spicer v. Benefit Ass'n of Railway Employees

• Citation: 17 P.2d 1107,142 Or. 574
• Parties: SPICER et al. v. BENEFIT ASS'N OF RY. EMPLOYEES. [*]
• Decision Date: 17 January 1933
• Court: Supreme Court of Oregon

17 P.2d 1107

142 Or. 574

SPICER et al. v. BENEFIT ASS'N OF RY. EMPLOYEES. ^[*]

Supreme Court of Oregon

January 17, 1933

Department No. 1.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Leslie William Spicer and another, minors, by Mary E Crandall, guardian, against Benefit Association of Railway Employees, a corporation, on a policy of accident insurance which promised to pay the beneficiaries of whom plaintiff was the guardian, $2,700 in the event Leslie V. Spicer lost his life "solely through external, violent, and accidental means." The answer denied that insured's death had occurred in that manner. From a judgment for plaintiff defendant appeals.

Affirmed.

George T. Cochran, of La Grande (Cochran & Eberhard of La Grande, on the brief), for appellant.

R. J Kitchen, of La Grande, for respondent.

ROSSMAN J.

The principal assignment of error challenges orders of the circuit court which overruled the defendant's motion for a nonsuit and for a directed verdict. Let us review the evidence, more especially that portion of it favorable to the plaintiff which the jury had a right to believe.

Leslie V. Scott, 36 years of age, was a machinists' helper. Prior to the alleged injury, which we shall now describe, he had always enjoyed good health and was a large, strong, powerful man. May 26, 1931, Spicer, while working at his employment, received an injury on the back of the middle finger of his left hand which inflicted a wound about three-fourths of an inch long and one-fourth of an inch deep. It bled freely and he at once repaired to the first-aid kit where he obtained some gauze dressing and mercurochrome with which he dressed the wound. A rule of the shop required all injured men to file written reports of any injuries received by them, but Spicer did not report the above incident. The evidence indicates, however, that the employees preferred not to report minor injuries. After dressing his finger, Spicer continued at his work the rest of the day and also the following day. Several acquaintances of his who saw him in the days following the above alleged accident swore that he wore a bandage upon his left hand. One testified that he "looked pale." Another swore that three or four days after the accident he noticed that a "red streak had started up his arm and a knot was under the arm." Another testified that he saw Spicer bathe his hand in warm water and that he "was awful sick. He couldn't hardly lie down on the bed." The same witness said that Spicer at that time had such a severe chill that he wore his over-coat indoors, even though the day was warm. Still another described the lump under Spicer's arm as being the size of the metal end of a light socket. A witness who saw Spicer May 29th or June 1st testified that he "looked sick then-he sure did. *** He had a horrible look on his face." He also testified that Spicer's left hand was in bandages and that, due to his inability to sleep, he was unable to obtain rest. Spicer's widow testified that his left hand had "become swollen and awful bad; hurt him so he couldn't sleep on account of it." She added that Spicer bathed it in hot water and suffered from it "quite a bit." As an additional remedy a hot water bottle was applied to the hand. Mrs. Spicer testified: "I was up several nights all night long" with him, and added: "It got so bad it was all swelled up and red streaks went up his arm." She testified that more than one of these streaks extended the length of his arm and she, too, described the nodules in his arm pit. She swore that a few days after the alleged injury Spicer "had an awful fever." Dr. W. K. Ross, a physician in the employ of Spicer's employer, who was called as a witness by the defendant, testified that on May 27th he attended Spicer and continued to attend him thereafter until his death. He found "a little area of infection" upon the middle finger of Spicer's left hand which he lanced and from which he removed free liquid not in the nature of a core. He also found that on June 6th Spicer's temperature was 101 degrees. Upon his advice Spicer discontinued his work May 28th, and on June 10th was taken to a hospital in an ambulance. The death certificate prepared by Dr. Ross, pursuant to the requirements of § 59-1207, Oregon Code 1930, which states: "The certificate of death shall contain the following items: *** (17) Cause of death, including the primary and immediate causes, and contributory causes or complications, if any, and duration of each ***" recites: "The cause of death was as follows: Lymphangitis arm from hand infection, 6/5/31 *** Contributory (secondary) bilateral lobar pneumonia, 6/10/31." August 21, 1931, Dr. Ross, in his own handwriting, answered a series of questions propounded to him by the defendant in a document entitled "Attending Surgeon's Certificate." From it we quote: "7. State the immediate cause of death, and particularly describe injury causing same: Lymphangitis of left arm from hand infection. 8. State the remote and contributing cause of death: Bilateral lobar pneumonia." The witness not only freely admitted that he had made the answers just quoted, but did not lessen their effect by explanation. Dr. James Haun, a physician called by the plaintiff, in answer to a hypothetical question which outlined the facts developed by the plaintiff's lay witnesses, expressed the opinion that the alleged injury to the middle finger of the left hand could have resulted in lymphangitis and thereby have caused the death. He also testified that lymphangitis was capable of lowering the vitality of the patient until a condition favorable to the development of pneumonia occurred. Dr. Mark Phy, another physician called by the plaintiff, to whom was also outlined the facts of Spicer's illness as described by the lay witnesses, testified that it was "quite possible" for Spicer to have thus contracted a "systemic infection that might cause his death." Upon cross- examination, he amplified his answer thus: "Now, a man that has a history of an injury followed by red streaks up the arm and nodules in the arm pits, and then, after the usual inoculation period, suffers a systemic infection, it is quite probable, without some other evidence, that there is a definite relation to the primary wound." In a later answer, he added: "It is quite possible for a man to suffer from lymphangitis, and then have lobar pneumonia; that would cause death, following an injury of this kind. There usually enters in an intercurrent infection. Most any of us in here could have lobar or any other type of pneumonia, if our resistance would not be capable of overcoming the natural infection that is constantly in our system. So if this man did actually have lymphangitis, it is quite possible it was the result of a lowered resistance in this man, and might have been responsible for the secondary or concurrent pneumonia which caused his death." Dr. Phy also testified that lymphangitis is regarded by medical men as "a very serious condition."

The defendant's answer did not concede that Spicer had sustained the alleged injury. Dr. Ross, the physician previously mentioned, testified that, when he attended Spicer May 27th, he found him suffering from "a condition which is known as general furunculosis"; that is, many boils or abscesses. According to his testimony, Spicer had "from six to ten of these small abscesses on each hand," and had consulted him two years previously about a similar condition. Dr. Ross testified that Spicer made no mention whatever of any injury. June 5th he saw Spicer again and found that the condition of his hands had greatly improved and that there was only one area which needed attention, being the back of the middle finger of the left hand which he lanced. He next saw Spicer June 6th. By this time the abscess was improved. "There was no free pus in it." June 8th he found "a little redness around the abscess and extending up the back of the hand." At that time, according to Dr Ross, Spicer "appeared to be rather sick." His temperature was 101 degrees. He made an examination to determine the cause of the temperature and illness, but found no trouble in either the kidneys or the lungs. He testified: "It didn't look as though his hand was sufficiently infected to cause it"-that is, the temperature and the illness. He added: "The redness never extended beyond the region of the wrist," and that he found no swelled lymph nodes under the arm. June 10th he again saw Spicer. At that time he found him suffering from lobar pneumonia in the lower lobe of the right lung, and removed him to a hospital. The witness testified that the direct cause of Spicer's death was pneumonia, and that he stated in "the original death certificate" that lobar pneumonia was "one of the primary causes" of the death. In the certified copy of the death certificate, which he identified, the cause of the death was thus described: "The principal cause of death was as follows: Lymphangitis arm from hand infection, June 5, 1931. Bilateral lobar pneumonia, June 10, 1931." Seemingly, he believed that the boils, which he said he found on Spicer's left hand, had caused the lymphangitis, yet he agreed that a boil walls itself off and thus prevents its poisonous contents from entering the blood stream. Dr. Haun testified that the inflamed condition created by a boil is not lymphangitis but cellulitis. Dr. Clarence L. Gilstrap, a physician who was consulted by Dr. Ross June 17th concerning Spicer's condition, testified that he saw no red streaks upon Spicer's left hand or arm, and that the cause of Spicer's death was lobar pneumonia. He noticed small purple spots on both of Spicer's hands which he believed were scars left by the alleged furuncular condition, and added: "This...