Union Casualty & Surety Co. v. Mondy

• Decision Date: 12 January 1903
• Citation: 18 Colo.App. 395,71 P. 677
• Parties: UNION CASUALTY & SURETY CO. v. MONDY et al. [*]
• Court: Colorado Court of Appeals

71 P. 677

18 Colo.App. 395

UNION CASUALTY & SURETY CO. v. MONDY et al. ^[*]

Court of Appeals of Colorado

January 12, 1903

Appeal from district court, Arapahoe county.

Action by Bertha Mondy and others against the Union Casualty &amp Surety Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

T.J. O'Donnell and Milton Smith, for appellant.

Dines &amp Whitted and J.G. McMurry, for appellees.

GUNTER J.

This was an action upon a policy of accident insurance by the guardian of infant beneficiaries, resulting in verdict and judgment for plaintiff. Defendant appeals. One hundred and thirty-five errors are assigned, all of which we have considered, but discuss only those which counsel apparently consider most important, and which we regard so.

The complaint alleges that insured, in discharging his duties as porter upon a sleeping car, was accidentally struck upon the head by the falling of a berth, and from the injuries so sustained died. These allegations the answer denies.

1. Defendant contends that there is no evidence of the principal fact that deceased was injured, except his statements made to witnesses Carter and Stafford after the alleged injury, and that such statements were inadmissible, being, as it contends, hearsay. The rule under which the admissibility of such testimony is determined is that, if the principal fact--an injured condition--is shown by other evidence, the cause of the condition can be shown by the statements of the deceased injured party, provided such statements constitute a part of the res gestae. Insurance Company v. Mosley, 8 Wall 397, 19 L.Ed. 437, was upon an accident policy. Plaintiff insisted that the insured died in consequence of an accidental fall; defendant, that his death was caused by disease. Mrs. Mosley, plaintiff and surviving wife, testified that insured got up between 12 and 1 o'clock at night and went out; she did not know how long he was gone; when he came back he said he had fallen down the back stairs and almost killed himself; his voice trembled; he complained of his head; appeared faint and vomited; she was up with him all night; he complained, and appeared to be in great pain. The son testified that he slept in the lower part of the building occupied by the father. At about 12 o'clock of the night mentioned he saw his father lying with his head on the counter, and asked what was the matter. He replied that he had fallen down the back stairs, and had hurt himself very badly. These statements as to the cause of the injury were objected to. No one heard or saw insured fall; there were no cuts or bruises upon the body. These statements were the only evidence of the cause of the injury. The reception of the evidence below was sustained on appeal, the court saying: "Here the principal fact is the bodily injury. The res gestae are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted and were in progress. Where sickness or affection is the subject of inquiry, the sickness or affection is the principal fact. The res gestae are the declarations tending to show the reality of its existence, and its extent and character. The tendency of recent adjudications is to extend, rather than to narrow, the scope of the doctrine. Rightly guarded, in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solid basis of reason and authority. We think it was properly applied in the court below. In the ordinary concerns of life, no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive." The doctrine announced in this case has not been repudiated by the eminent tribunal which declared it, and it has been frequently approved. Among the cases see: Northern American Accident Asso. v. Woodson, 64 F. 689, 12 C.C.A. 392; Ry. Co. v. Ashley, 14 C.C.A. 368, 67 F. 209; Ry. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 27 Am.St.Rep. 902; Leahey v. Ry. Co., 97 Mo. 167, 10 S.W. 58, 10 Am.St.Rep. 300; Linderberg v. Crescent Mills (Utah) 33 P. 692.

The principal fact here was the injured condition of the insured. There was evidence of this other than his declarations made to the witnesses Carter and Stafford. He was a sound, healthy man, discharging his duties as porter. The train entering the town of Davisville made a sudden, violent, and unusual stop, the jar resulting to passengers from the stop being so violent as to alarm them. Immediately thereafter insured was seen standing at a berth partially made down, his foot upon the stepping stool, his head between his hands, and in great pain. He continued in great pain, his face and complaints showing pain. His head was tied up with a wet towel, and in his suffering he was put to bed in the smoking room. This was the night of October 26th. He remained in bed in the car, sick and suffering, until he arrived at home (Denver) October 29th. He there went to bed, called a physician, and remained under his care until death--November 11th. An autopsy was then made, showing a congested condition of the brain on the right side, and that from this he died. He was found to have been a strong, healthy man; every organ, even in death, was healthy and in good condition. There was no symptom of any disease from which the congested condition of the brain could arise. Dr. McNaught, who attended the insured continuously after his arrival in Denver, and who participated in the autopsy, testified that the probable cause of the congested condition of the brain was an injury. These facts showed that insured was suddenly changed from the state of health to one of sickness and pain; they showed the principal fact, the injured condition of the insured. The evidence showing the injured condition was as strong as that showing the injured condition in the Mosley Case. In neither case did any party see the accident. In neither case were there bruises or cuts upon the body. In each case the injured condition was proven by the suffering, the actions of the party, and the results of the condition. The injured condition having been shown, any statements made by the insured explanatory of the cause, which were a part of the res gestae, were admissible for that purpose. In this case the witness Carter found insured injured and in pain, and inquired of him, " 'What is the matter with you Dave?' In a very faint voice he said: 'I was getting down this berth, and it came down and struck me in the head. ***' I think he said his foot slipped, or something like that; he said something about the berth coming down and his foot slipping, I think he said, and before he could recover himself the berth caught him and struck him." This statement, introduced for the purpose of showing the cause of the injury, appellant contends should have been rejected as hearsay. The statement was made by deceased at the scene of the accident, immediately thereafter, unaffected by any disturbing cause intervening between the accident and the statement. Apparently it was unmeditated, and the natural, spontaneous expression of the deceased, issuing directly from, and produced solely by, the accident and its results. No reason appears for rejecting it as a statement concocted by deceased in his own behalf; apparently it was a natural, unbiased, truthful statement given in explanation of his then injured condition and pain. The law applicable to this class of testimony is stated in Pueblo Building Co. v. Klein, 5 Colo.App. 348, 354, 38 P. 608, approved Herren v. The People, 28 Colo. 23, 28, 62 P. 833: "The declaration offered in evidence must be either contemporaneous with the principal fact or its natural and spontaneous outgrowth. It must be instinctive, unmeditated utterance of the party while the impression produced by the event has full possession of the mind. The connection between the statement and the fact must be such that the one is the evident interpreter of the other. Their relation to each other must be that of immediate cause and effect. When the two are thus connected, it does not matter that there is an appreciable lapse of time between them. Notwithstanding such lapse, the one is a continuation of the other, and both are parts of one transaction. But if there is a severance of the connection;if the transaction, so far as the person speaking is concerned, is at an end before the declaration is made--the two are distinct, independent of each other, and it is immaterial how minute the interval which separates them. The utterance then proceeds from volition, and the speaker is not the mouthpiece of the event. See 1 Wharton on Ev. § 259; 1 Greenleaf on Ev. §§ 108, 110."

It would serve no useful purpose to attempt a review of the many authorities discussing this principle of evidence, and applying it to the varying facts presented by the cases. We are clear that this evidence was properly admitted. Upon the same principle, the statements made to deponent Stafford were properly received.

2. The policy provided: "This insurance does not cover *** any injury, fatal or otherwise, of which there is no visible mark upon the body." Appellant contends that there was no evidence of a visible mark of the alleged injury upon the body of deceased. The jury in effect found that deceased was accidentally struck upon the head by the falling of an upper berth of a sleeping car, and that the injury so produced was the cause of his death. It was the purpose of defendant in issuing this policy, and the purpose of deceased in taking it out, to have the policy cover accidents of the character of the one here involved. The purpose of the provision of the policy thus cited was not to exclude...