U.S. Fidelity & Guaranty Co. v. Smith

• Decision Date: 25 May 1964
• Docket Number: No. 43077,43077
• Citation: 249 Miss. 873,164 So.2d 462
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. Mrs. Whitney E. SMITH (also known as Leone L. Smith).
• Court: Mississippi Supreme Court

Page 462

164 So.2d 462

249 Miss. 873

UNITED STATES FIDELITY & GUARANTY COMPANY v. Mrs. Whitney E. SMITH (also known as Leone L. Smith).

No. 43077.

Supreme Court of Mississippi.

May 25, 1964.

Brewer, Brewer & Luckett, James Upshaw, Clarksdale, for appellant.

Breland & Whitten, Sumner, for appellee.

BRADY, Justice:

This is an appeal by the United States Fidelity & Guaranty Company from a judgment in the principal amount of $10,000, with interest, based upon a jury verdict and a judgment obtained in the Circuit Court of the Second Judicial District of Tallahatchie County, Mississippi, on March 7, 1963.

The appellee filed her declaration against the appellant based upon provisions contained in the comprehensive general automobile liability insurance policy issued to the appellee's deceased husband, Whitney E. Smith. The declaration alleges that the insured died as a result of injuries sustained on the 18th day of September, 1962, when his 1960 Pontiac automobile, which he was driving, collided with a 1957 Ford automobile being driven by Mr. Gentry M. Brannon, Sr., adjacent to the driveway going into Mr. Brannon's home. Mr. Smith received internal injuries from the wreck and, as a proximate result of said injuries, and solely because thereof, he died on the 24th day of September, 1962; and that the death of the insured resulted directly and independently of all other causes from the bodily injuries caused by said accident, and that under the terms of the policy of insurance the appellant is obligated to the appellee in the sum of $10,000, but that appellant has failed to pay same.

The facts in the case are brief and, for the most part, are uncontested. On the 18th day of September, 1962, the insured, Whitney E. Smith, was driving his Pontiac automobile on Mississippi Highway No. 32, about 10:30 in the morning. He was driving behind a 1957 Ford being driven by Mr. G. M. Brannon, Sr., and when the deceased attempted to pass the Ford car being driven by Mr. Brannon, Mr. Brannon simultaneously turned his car to the left in the highway, for the purpose of entering a private driveway on the south side of the highway. The right front part of the Smith Pontiac car struck the Ford car about its left rear door, blowing out the right front tire on the Pontiac, damaging the wheel, and causing the Smith car to leave the road and to run down into a bar pit where it stopped. There was no positive proof as to the speed of the deceased's automobile, but testimony indicates, from the skidmarks made by the deceased's car prior to the collision, the position of the car subsequent to the wreck and the damages done to the car as revealed by the photographs introduced, that there was considerable force involved at the time of the collision. The deceased's car could not move on its own power.

The first person to the scene was Mr. David Rice, who testified that when he arrived the deceased was standing on the gravel driveway, rubbing his chest and, when asked if he was hurt, replied that he didn't think so, that he had received a skinned leg. The deceased, however, appeared to be extremely nervous and upset.

Patrolman Robert R. Sewell testified that when he came to the scene shortly after the collision, Mr. Smith was in shock and was having difficulty in making conversation and was about to have a rigor. Patrolman Sewell tried to get him to go to a doctor but the deceased refused to do so, and the patrolman carried him home.

The record discloses that during the next six days the deceased suffered considerably, complaining of pain in his chest and abdomen; that he had difficulty in getting his breath and was suffering considerable discomfort and pain.

Dr. Biles of Sumner corroborated the foregoing facts and also testified to the fact that the deceased had developed a blue, bruised spot on the upper stomach of his left side. When the deceased's blood pressure dropped appreciably and his pulse and respiration increased, on the morning of September 24th, Dr. Biles immediately referred him to Dr. Meek of Greenwood, and the deceased was rushed to the Greenwood Leflore Hospital, where he died about thirty minutes after being admitted. An autopsy was performed on the deceased by Dr. Daniel Trigg, the pathologist of Greenwood Leflore Hospital. Dr. Meek was present at the time the autopsy was performed. The autopsy revealed fresh, bright blood, which showed that there had been a recent hemorrhage, and there was also observed old blood which had run down into Mr. Smith's abdominal cavity back of his great blood vessel, which showed that he had had blood leaking from his great blood vessel for several days.

The appellee offered ten witnesses, eight of whom were lay witnesses, including the appellee, the investigating patrolman and six friends, who, among other things, testified that prior to the accident the deceased had been a very active man for his age and, as far as they knew, was healthy and led a normal, active life. None of the lay witnesses could know to what degree, if any, the aneurysm, which the autopsy revealed the deceased had, contributed to the deceased's death. No objection is made by the appellant to the lay testimony of these witnesses insofar as the former health and activities of the deceased are concerned. The two other witnesses offered by the appellee were Dr. G. Lacey Biles, the local family physician at Sumner, Mississippi, and Dr. Edwin M. Meek, the family physician at Greenwood. Dr. Biles and Dr. Meek both testified that the deceased was a normal person for his age. Dr. Biles testified that he had been perhaps a little too active, but that he had slowed down a little and that he was doing the ordinary work of a man of his age. He testified that he saw him the day after the accident; that the deceased was complaining of pain, on deep breathing, in his lower chest, and in the pit of his abdomen to the left side, in the upper part of the stomach. His left chest showed pleurisy or a pleuritic rub. He had a bruise on his upper abdomen or lower chest on the left side, about two inches up and down, and about three inches across. Dr. Biles saw the deceased again on the 22nd, which was four days after his injury, at which time the deceased was not able to have a bowel movement, and had not had any since the time of the accident. On the 24th of September he was called again to the deceased's home around 6:30 in the morning and the deceased was complaining more with his stomach than he was with his chest. Around 8:00 A.M., the deceased's blood pressure dropped from 184/94 to 144/64. His pulse increased from 90 to 110 and his breathing increased from 18 to 24, and Dr. Biles stated that he knew that Mr. Smith was in serious condition. He immediately called Dr. Meek at Greenwood and promptly sent Mr. Smith to the Greenwood Leflore Hospital to Dr. Meek, where he died thirty minutes after being admitted.

An autopsy subsequently performed by Dr. Trigg revealed that the deceased had an aortic aneurysm. The aneurysm was roughly three to four inches in size, and approximately three or four inches from the heart, and had been in existence for some length of time and was ruptured. Dr. Biles was of the opinion that Mr. Smith's death was due to the injuries which he received in the automobile accident. He stated:

'Of course, I didn't know that he had a rupture of his aorta, and I doubt if they knew either, because it is a little unusual thing. Usually those things are sudden, but from the history before and after, if you want to put it that way, he must have had a pinpoint, real slow, opening in that blood vessel, the aorta.'

In answer to the question of what, in his opinion, caused the opening in the aorta, Dr. Biles testified:

'Well it was definitely a coincidence of the wreck. It was simultaneous. That's what he had at that time.'

The testimony of Dr. Biles also reveals that it was his opinion that the automobile accident tore or caused a small hole in his aorta, which in turn caused a slow leak, and that blood had been leaking from this hole from the time of the accident to the time of his death. Dr. Biles was also of the opinion that except for the accident, Mr. Smith would have lived at least five or six years longer. Dr. Meek, appellee's physician who resides at Greenwood, testified that he was present when the autopsy was performed by Dr. Daniel Trigg; that he observed the fresh, bright blood, which showed that the deceased had had a recent hemorrhage, and the old blood which had run down into the deceased's abdominal cavity; that Mr. Smith had said: 'This pain is about to tear me in two.' Dr. Meek testified that the old blood was around the nerves which supplied his intestines, paralyzing them so that they did not work after the wreck. Dr. Meek stated that he did not think there was any doubt that the deceased had an injury to his aorta at the time of the accident, which later became larger, and that the deceased bled to death. Dr. Meek stated emphatically:

'I feel very strongly that the accident caused his death, and did at the time. * * * The cause of death was the rupture of an aortic aneurysm due to the accident that he had six days before I saw him.'

Dr. Meek testified that he had no reason to say but that the deceased should have lived several years at least, had he not had the accident. Dr. Trigg, who performed the autopsy in the presence of Dr. Meek, testified that there were eight findings obtained from the autopsy, four of which related to the immediate cause of Mr. Smith's death, being (1) 'dissecting aneurysm of the aorta with rupture'; (2) '* * * extreme loss of blood'; (3) 'arteriosclerotic cardio-vascular disease'; (4) 'contusions--superficial and internal'. Dr. Meek stated that these were the four main causes of the death of the deceased. This doctor testified further that the aneurysm was located in the aorta, was approximately three or four inches in diameter, and that it had been there...