Ward v. Aetna Life Ins Company

• Decision Date: 19 November 1909
• Docket Number: 16,275
• Citation: 123 N.W. 456,85 Neb. 471
• Parties: BEDILIA WARD, APPELLEE, v. AETNA LIFE INSURANCE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

123 N.W. 456

85 Neb. 471

BEDILIA WARD, APPELLEE, v. AETNA LIFE INSURANCE COMPANY, APPELLANT

No. 16,275

Supreme Court of Nebraska

November 19, 1909

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed.

REVERSED.

Greene Breckenridge & Matters, for appellant.

John M Macfarland and Weaver & Giller, contra.

FAWCETT, J. LETTON, J., concurring in the result. REESE, C. J., dissenting.

OPINION

FAWCETT, J.

This case is before us for the second time. Our former opinion by Mr. Commissioner CALKINS, 82 Neb. 499, contains a fair statement of the case. It is true the testimony of some of the physicians, notably that of Dr. Smith, makes the case somewhat stronger for defendant. Still, on the whole record, we are again constrained to hold that we cannot determine as a matter of law that there was not sufficient evidence to take the case to the jury. The district court instructed the jury prior to the argument of the case by counsel. Defendant by its second instruction requested the court to charge the jury as follows: "The only question in this case is whether the death of Frank Ward resulted solely from bodily injuries effected through external, violent and accidental means which, independently of all other causes, produced his death. You are instructed that there is no presumption that the death of Frank Ward resulted from the accident which he sustained August 1, 1905, and the burden of proof rests upon the plaintiff to establish by the preponderance of the testimony that the accident of August 1, independently of all other causes, produced Ward's death on the 17th of August following; and, if you find that the death of Ward resulted from sickness which would not have been fatal but for the lowered vitality which followed his injury, the sickness, and not the lowered vitality, was the cause of the death, and your verdict in such case will be for the defendant." The court refused to give the instruction, but gave in lieu thereof its instruction numbered 6 1/2, as follows: "6 1/2. You are instructed that there is no presumption that the death of Frank Ward resulted from the accident which he sustained August 1, 1905, and the burden of proof rests upon the plaintiff to establish by the preponderance of the testimony that the accident of August 1, independently of other causes, produced Ward's death on the 17th day of August following; and, if you find that the death of Ward resulted from sickness which would not have been fatal but for the lowered vitality which followed his injury, the sickness, and not the lowered vitality, was the cause of the death, and your verdict in such case will be for the defendant."

The arguments were not concluded on the day the instructions were given. On the coming in of court on the following morning, the court, on its own motion, gave to the jury instruction numbered 6 3/4, as follows: "6 3/4. You are instructed that as to instruction 6 1/2 further you are not to construe instruction 6 1/2 as meaning that there could be no recovery in case you should find that the death resulted proximately and as the moving cause from the accident of August 1, 1905, because there were other causes that accelerated, or, even being added, resulted in death. If the cause of death was later sickness as a moving cause, accelerated by a weakened condition resulting from the accident that was not the moving cause, then there can be no recovery. If the cause of death was the accident, its results being quickened or accelerated by later conditions, then there may be recovery. This instruction is added to those previously given by reason of the words 'independent of other causes' in their relative use in said 6 1/2."

The giving of this instruction was error. The court in the first paragraph thereof says: "You are not to construe instruction 6 1/2 as meaning that there could be no recovery in case you should find that the death resulted proximately and as the moving cause from the accident of August 1, 1905 because there were other causes that accelerated, or,...