Stokely v. Fidelity & Cas. Co. of New York

• Decision Date: 04 February 1915
• Docket Number: 943
• Parties: STOKELY v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Alabama Supreme Court

69 So. 64

193 Ala. 90

STOKELY v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 943

Supreme Court of Alabama

February 4, 1915

Rehearing Denied May 20, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Mary H. Stokely against the Fidelity & Casualty Company of New York. Judgment for defendant, and plaintiff appeals. Affirmed.

Frank S. White & Sons, Stokeley, Scrivner & Dominick, and I.M Engel, all of Birmingham, for appellant.

Cabaniss & Bowie, of Birmingham, for appellee.

SAYRE J.

Plaintiff who takes this appeal, sued defendant on a policy of insurance by which defendant insured John Arthur Haire against "bodily injury sustained *** through accidental means *** and resulting directly, independently, and exclusively of all other causes *** in death." After all the evidence was in, the trial court gave the general affirmative charge on defendant's request. Hence this appeal.

The evidence may be fairly stated as follows: During the life of the policy the assured was sick of appendicitis. He submitted himself to an operation by which his appendix was removed. The operation was performed and the wound closed in the usual routine of such cases. The four layers of the wall of the stomach, from peritoneum to outer skin, were in turn returned with catgut. For four or five days assured came along without apparent complication and with every promise of a rapid recovery; but when the surgeon visited him on the morning of the fourth or fifth day his patient vomited and coughed for a spell and then complained of severe pain. Upon examination it was found that the wound had opened and the patient's intestines were protruding through the wound caused by the operation. Immediately the patient was again anaesthetized and his wound again closed. He never recovered consciousness, and died in the course of a few hours. The surgeon testified that he saw no reason in the world why the patient should not have recovered, had the stitches in the wound not broken. There was nothing else wrong with the patient--by which, of course, the witness meant nothing wrong as operations for appendicitis go. To sum up, witness was of opinion (and this is clear even to the nonprofessional mind) that the patient's disease brought on the first operation, the coughing and vomiting burst the stitches, bringing on the second anaesthetic and the second operation, and at the end of the sequence came death.

Plaintiff settled upon the bursting of the stitches as the accident in the case, and certainly there was none other. Without conceding that there was any bodily injury sustained through accidental means...