W. Travelers' Accident Ass'n v. Munson

• Decision Date: 17 May 1905
• Citation: 103 N.W. 688,73 Neb. 858
• Parties: WESTERN TRAVELERS' ACCIDENT ASS'N v. MUNSON.
• Court: Nebraska Supreme Court

73 Neb. 858

103 N.W. 688

WESTERN TRAVELERS' ACCIDENT ASS'N

v.MUNSON.

Supreme Court of Nebraska.

May 17, 1905.

Syllabus by the Court.

1. The rule that permits conclusions of law to be disregarded when the sufficiency of the facts pleaded to constitute a cause of action or defense is called in question, has no application to conclusions of fact.

2. When thus assailed, the pleading is good, if the ultimate facts constituting a cause of action or defense are alleged. If the facts thus alleged do not make the pleading sufficiently definite and certain, the remedy is by motion.

3. The prohibitions, in section 333 of the Code, against a physician's testifying to confidential disclosures made to him in the course of his professional employment, are for the benefit of the patient, who, by the express provisions of section 334, is permitted to waive them.

4. It is not necessary that such waiver be made at the time of the trial. It may be included in and made a part of the contract sought to be enforced in the action in which such testimony is offered.

5. A stipulation, in a contract of life insurance to the effect that the proofs of death shall consist in part of the affidavit of the attending physician, which shall state the cause of death and such other information as may be required by the insurer, constitutes a waiver within the meaning of said sections, and renders the attending physician a competent witness as to the confidential disclosures made to him by the assured concerning his last sickness.

6. Statements of fact fairly indicative of a relevant bodily condition of the declarant at the time of the declaration are admissible as evidence of the existence of such condition, although made a considerable time after the injury was received.

7. The admission of the testimony of the wife as to communications made to her by her husband in his last sickness held not prejudicial error under the circumstances disclosed by the record in this case.

Commissioners' Opinion. Department No. 2. Error to District Court, Douglas County; Fawcett, Judge.

Action by Lena Miller Munson against the Western Travelers' Accident Association. Judgment for plaintiff, and defendant brings error. Affirmed.O'Neill & Gilbert, for plaintiff in error.

Hall & Stout, Watt G. Sheldon, and Frank T. Ransom, for defendant in error.

ALBERT, C.

The terms “plaintiff” and “defendant” will be used herein with reference to the title of the cause in the court below. The defendant is a fraternal insurance association. Charles J. Munson, deceased, was a member thereof, and held a membership certificate therein insuring him, among other things, against death “through external, violent, and accidental means.” The plaintiff is the widow of the assured, and the beneficiary named in the certificate.

The constitution of the association, which is a part of the contract of insurance, provides that no claim shall be valid unless notice in writing of the accident is received in the office of the association within 15 days from the date thereof, and affirmative proofs in writing of said claim, as required by the executive board, are received within 30 days after the loss occurs; such proof in case of death of the assured to consist of the affidavit of the beneficiary and the attending physician, which “shall state the cause of death, giving dates of the accident and particulars thereof, and also the date of death. and such information as may be required by the association.” In the petition upon which the cause was submitted to the jury, among other things, it is alleged: “That at all times subsequent to becoming a member of defendant association, as aforesaid, and up to the time of his death, as hereinafter set forth, he, the said Chas. J. Munson, continued a member thereof in good standing, and while so in good standing, and within three months immediately prior to his death, was accidentally cut, wounded, bruised, and injured by external, violent, and accidental means; the exact time, place, and manner of receiving said accidental cuts, wounds, bruises, and injuries, as aforesaid, is unknown to the plaintiff; and that the said Chas. J. Munson, after receiving said injuries, and on, to wit, August 27, 1902, and by reason thereof, and independently of all other causes, died.” It is further alleged that the assured had fully kept and performed all the terms and conditions of said contract of insurance on his part to be kept and performed, and that the plaintiff has fully kept and performed her part thereof, except to furnish or file the proofs of death hereinbefore mentioned; but that the furnishingand filings of such proofs had been waived by the association within 30 days from the death of the assured. In the answer to said petition the allegations as to the cause and manner of death, notice to the defendant of the accident as required by the constitution, and a waiver of formal proofs of death, are denied. The answer also contains allegations to the effect that no such notice was given or proof made, and that the death of the deceased was due to natural, and not to accidental, causes. There was a verdict for plaintiff, and judgment accordingly.

It is claimed by the defendant that the petition does not state facts sufficient to constitute a cause of action, in that it fails to show that the injury was received through accidental means. In making this claim counsel do not overlook the positive averment of the petition, hereinbefore set out at length, that the assured “was accidentally cut, wounded, bruised, and injured by external, violent, and accidental means; the exact time, place, and manner of receiving said accidental cuts, wounds, bruises, and injuries, as aforesaid, is unknown to the plaintiff”; but insists that the allegation that “the exact time, place, and manner of receiving said accidental cuts, etc., are unknown to the plaintiff,” negatives the allegation that such injuries were accidental, and destroys its force and effect. We do not believe that the language will bear that construction. There is a positive allegation that the injuries were received through accidental means. That plaintiff afterward disclaims knowledge of the exact time, place, and manner of receiving such accidental injuries in no wise negatives her allegation that they were accidental. For example, a man is found crushed and dying between the rails of a railroad track in the wake of a passing train. In the absence of any explanation of the circumstance, that his injuries were due to accidental means would be a reasonable inference. This inference, though slightly weakened, would not be negatived, by the fact that “the exact time, place, and manner” of receiving the injuries were unknown.

It is also urged that the allegation that the injuries were received through accidental means is a mere conclusion. It is an elementary rule that a bare conclusion of law adds nothing to the value of a pleading, and should be disregarded when the sufficiency of the facts pleaded to constitute a cause of action or a defense is called in question. But this rule does not extend to conclusions of fact. Such conclusions do not render a pleading vulnerable to a demurrer. Ordinarily, it is only necessary to plead the ultimate facts upon which the pleader relies. Such facts, of necessity, are conclusions drawn from intermediate and evidential facts. If the ultimate facts are not stated with sufficient certainty, the remedy is by motion. Whether the injuries were received through accidental means is purely a question of fact, and the allegation that they were thus received is a conclusion of fact, and does not fall within the rule invoked by the defendant. The court directed the jury that the question for their determination was whether the assured died as a result of an injury received while traveling as a passenger on a freight train on the Burlington & Missouri River Railroad, near the town of Brush, Colo.; and the defendant insists that the evidence is insufficient to show that the assured received any injury by accidental means at that time. The evidence shows that on the 20th day of August, 1902, the assured left his home in Denver. Two days afterward he was seen in Akron, Colo., where, at 11:30 p. m., he boarded the caboose of a freight train on the Burlington & Missouri River Railroad. At about 1:30 the next morning, when the train was near Brush, in that state, and while it was running about 40 miles an hour, an axle on one of the freight cars broke, one end of which was driven through the car; the other struck the track, tearing up the ties for some distance. The evidence sufficiently shows that the assured was in good health when he left home, and remained in that condition to the time of the accident to the train. He was the only passenger on the train, and there is no direct testimony that he was injured by the accident. After the accident the assured was taken on the engine to Brush, and there took passage on a train for Sterling, Colo., where he arrived about 6 o'clock the same morning. His appearance on his arrival there indicated that he was ill, and he at once sought a hotel and retired. In the afternoon a physician called to treat him, and found him in bed, apparently suffering and complaining of pains in his back. The physician continued to treat him, and some two or three days after his first visit examined his back, and found bruises in close connection with the lower lobe of the left lung and at or about the place where the assured located the pain. The assured died the fourth day after his arrival at Sterling. The testimony of the attending physician is to the effect that the assured died of pneumonia or congestion of the lungs, produced by the injury indicated by the bruises, and that such injury was the primary cause of his death. From these facts it is reasonably clear, we think, that the assured up to the time of the accident was in good health, within a few...