Stuart v. Occidental Life Ins. Co.

• Decision Date: 02 June 1937
• Citation: 156 Or. 522,68 P.2d 1037
• Parties: STUART v. OCCIDENTAL LIFE INS. CO.
• Court: Oregon Supreme Court

68 P.2d 1037

156 Or. 522

STUART v. OCCIDENTAL LIFE INS. CO.

Supreme Court of Oregon

June 2, 1937

Department 1.

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

Action by Rhelda Mildred Stuart against the Occidental Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Geo. E. Richards, of Enterprise, for appellant.

S. H Burleigh, of La Grande (Burleigh & Burleigh, of La Grande, on the brief), for respondent.

BEAN Chief Justice.

This is an action by Rhelda Mildred Stuart to recover upon an insurance policy issued by the Occidental Life Insurance Company upon the life of her deceased husband, Kenneth Gould Stuart, which policy named her as beneficiary and insured Kenneth Gould Stuart against death in the amount of $1,000 and, as a part of said policy and as a supplemental agreement thereto, the company issued to said Kenneth Gould Stuart its additional accident indemnity contract, providing for the payment of the sum of $1,000 in the event of the death of said Kenneth Gould Stuart, resulting directly, independently and exclusively of all other causes from bodily injury effected solely through external, violent, and accidental means, and only if such death resulted within ninety days immediately succeeding the occurrence of such means, and only if such indemnity is not excluded by the provisions of said contract. It specifically provides that the indemnity therein provided shall not be payable if the death of the insured resulted directly or indirectly, wholly or partly, from disease or from bodily or mental infirmity or from self-destruction, whether sane or insane, or from the voluntary or involuntary inhalation of carbon monoxide or any kind of gas or vapor, or from gunshot wound or wounds unless inflicted through accidental means in the presence of a known witness, or from food poisoning or from bacterial infections (other than infection occurring simultaneously with and in consequence of an accidental cut or wound), or from childbirth.

The cause was tried to the court and jury and a verdict returned in favor of plaintiff for the sum of $2,000. Defendant appealed.

The testimony tended to show that Kenneth Gould Stuart was a man twenty-six years of age who had always been strong and able-bodied and never had any illness other than ordinary head colds, and who was in good health and going about his usual duties just prior to the 27th day of May, 1936, the date on which he was engaged in fighting a fire, when he suffered accidental injuries which later resulted in his death. The insured was a member of the Volunteer Fire Department of the City of Enterprise, Or. Twice during the time he was engaged in fire fighting he was accidentally enveloped in smoke, soot, and flames, in such a manner that he was unable to get away without suffering injury. The first time was while fighting fire from a ladder, when smoke and flames burst unexpectedly and without warning from a window, so that he was enveloped in smoke and flames, until the hose could be changed to drive the smoke back. The second time, which was the more serious accident, was while he was engaged in fighting fire inside the building and a section of the ceiling collapsed and fell upon the insured, enveloping him in smoke, soot, and fiery débris. Immediately after the fire the insured complained of a pain in his lungs, which continued for a period of about ten days and resulted in pneumonia, from which he died. The insurance company tendered $1,000 for the insurance against death and denied liability as to the accident indemnity contract.

Defendant assigns error in permitting the witnesses to relate declarations made by the insured in regard to pain in his lungs after the alleged accident, claiming their testimony was hearsay and incompetent. It has been declared the law in this state that whenever it becomes material to show a person's condition of health, a declaration of the person as to present pain or suffering is admissible as evidence. Thomas v. Herrall & Zimmerman, 18 Or. 546, 548, 23 P. 497, 498; Weygandt v. Bartle, 88 Or. 310, 319, 171 P. 587; Derrick v. Portland Eye, etc., Hospital, 105 Or. 90, 99, 209 P. 344. In Thomas v. Herrall & Zimmerman, supra, an action for damages, the plaintiff's witness was permitted to testify, in regard to plaintiff, that "she said it hurt her there, under the right arm." It was held that the evidence was within the principle laid down in 1 Greenleaf's Ev. (16th Ed.) 254, § 162b, where it is said: "The representation by a sick person of the nature symptoms, and effects of the malady under which he is laboring at the time, are received as original evidence; if made to a medical attendant, they are of greater weight as evidence; but, if made to any other person, they are not on that account rejected." Citing authorities.

In Weygandt v. Bartle, supra, a damage action, plaintiff's witness was permitted to testify that on the day after the injury plaintiff complained of pain in his side. It was held that the statements or declarations of plaintiff were properly admitted in evidence for the purpose of showing the condition of his health, which was in issue.

The statements of the deceased, although not a part of the res gestæ, appeared to have been the natural and spontaneous utterances of the deceased in regard to the pain which he felt. The testimony was admissible and there was no error in the ruling of the court in respect thereto.

The authorities cited by defendant do not support its contention in this respect. In such cases as Zion's Co-operative Mercantile Institute v. Industrial Comm. of Utah, 70 Utah, 549, 262 P. 99, the inhibition is in regard to evidence of how and when the accident in question occurred, and not as to an expression of pain, as in the present case, where there was no narration of the circumstances of how the accident happened contained in the statement of the deceased, as testified to by the witnesses.

The second error is predicated on the court's denying defendant's motion for a nonsuit as to the defendant's liability under the additional accident indemnity contract. The defendant submits that the company may, in its policy, make special exceptions as to causes of injuries, citing Hawkeye Commercial Men's Ass'n v. Christy (C.C.A.) 294 F. 208, 211, 40 A.L.R. 46. We do not question the right of the parties to make the contract contained in the policy of insurance, and plaintiff has the burden of establishing, as a part of her case, the death of her husband resulting from an accidental injury of the kind covered by the contract. This may be established by circumstantial evidence. Mutual Ben. Health & Accident Ass'n v. Basham, 191 Ark. 679, 87 S.W.2d 583.

It is contended by defendant that the cause of Stuart's death was pneumonia. The testimony, especially of the physicians, tended to show that the pneumonia was caused by an accidental injury, inhaling smoke, soot, and fire, received at the time the ceiling fell upon the deceased. In 1 C.J. 430, § 75, we read: "A disease contracted as the result of an injury such as is contemplated by a policy of accident insurance may be within the protection of the policy; and this rule has been applied to permit a recovery where the insured contracted Bright's disease, fever, kidney disease, peritonitis, pneumonia, rheumatism, or tetanus, or where a complication of diseases has resulted. But where nothing of an accidental nature has contributed to bringing on the disease it is of course not within the protection of an accident policy." See, also, Preferred Acc. Ins. Co. v. Patterson (C.C.A.) 213 F. 595.

There were four physicians who testified as experts in regard to the cause of the death of Kenneth Gould Stuart. Their testimony was practically to the same effect. Dr. A. F. Martin testified that a traumatic condition or traumatic pneumonia is one caused by an injury of some sort; that he attended Kenneth G. Stuart during his last sickness, approximately five days; and that he died of pneumonia which he classified as traumatic pneumonia. He further testified:

"Q. And from the information you gathered from your treatment of this patient, and the history of the case, as it naturally came to you as a physician, what would you say was the cause of the trauma or injury to the lungs?-of Mr. Stuart? A. Inhalation of smoke while fighting fire, I guess, was the cause.

"Q. Would the inhalation of that smoke and soot into his lungs there create a trauma or injury of the tissues of the lungs that would develop into pneumonia? A. It would create an injury there which would (give) the pneumonia a chance to develop.

"Q. And from your knowledge of the case and the history of the case, it is your opinion that that is what occurred, is it? A. That is my opinion, yes."

The testimony tended to show, and the jury was warranted in finding, that the death of Kenneth G. Stuart resulted directly, independently, and exclusively of all other causes from bodily injury effected solely through external, violent, and accidental means, namely, the accident of the falling ceiling upon Stuart, with smoke, soot, and cinders which he inhaled, and that such accident was not excluded by the provisions of the policy.

Dr. E. L. Landers, who was in consultation with Dr. Martin, testified in answer to an interrogatory, as follows: "A. In view of the circumstances that occurred before he contracted pneumonia, and the thing that I looked to most as a causative factor, and that lowered his resistance, was being at this fire and inhaling smoke from it; that seemed to be the outstanding and primary cause that started this thing off."

Based upon the statement of the case, the doctor was asked "What is your present opinion as to the cause...