Ward v. Aetna Life Insurance Company
| Decision Date | 22 October 1908 |
| Docket Number | 15,279 |
| Parties | BEDILIA WARD, APPELLEE, v. AETNA LIFE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed.
REVERSED.
Greene Breckenridge & Matters, for appellant.
Weaver & Giller and John M. Macfarland, contra.
CALKINS C. FAWCETT and ROOT, CC., concur.
The defendant issued an accident insurance policy to plaintiff's son on the 1st day of December, 1904. On August 1, 1905, the insured, who was by occupation a locomotive fireman, was injured in an accident occurring while he was at work in the railroad yards at Omaha. He was treated for this injury by his employer's physician, Dr. Smith, until August 9, 1905, when he was pronounced cured. On August 15 he again entered upon his duties as fireman upon a train leaving Omaha for Grand Island that night at about 11:30 o'clock. He performed his usual duties until reaching Central City the next day, when he became so ill as to be unable to fire his engine from that point to Grand Island. On reaching Grand Island, he went to a hotel, whence he was removed the next morning to the hospital, where he died that evening. The plaintiff, who was the beneficiary named in said policy in case of death, brought this action, claiming that the injuries suffered by the insured on the 1st of August caused his death. The liability of the defendant for the accident occurring on the 1st of August was not denied, but it was contended that said injury was confined to the crushing or bruising of one foot of the insured, and that his death was not caused by said accident. There was a verdict for the plaintiff, from which the defendant appeals.
1. The plaintiff offered evidence as to complaints made by the insured concerning his bodily suffering from the time of his injury to the date of his departure on the trip to Grand Island. This evidence was objected to on the ground that it was hearsay; and its reception is now assigned as error. The rule in such cases, as stated by Mr. Stephen (Digest of the Law of Evidence, art. 11), is that, when any bodily feeling or state of the body of any person is a fact in issue or relevant to the issue, all things done or said by any such person which express or show the existence of any such state of body in reference to the particular matter in question are relevant, although they may not have been done or said on the occasion when the fact in issue happened. This rule has been recognized by our own court in Western Travelers' Accident Ass'n v. Munson, 73 Neb. 858, 103 N.W. 688, where it is said: "Statements of fact fairly indicative of a relevant bodily condition of the declarant at the time of the declaration will be received as circumstantial evidence of the existence of that condition, although made a considerable time after the injury was received." The claim of the plaintiff being that the injuries received by the insured on the 1st day of August caused bodily lesions which continued, and resulted in his death two weeks later, his bodily condition during that period was relevant to the issue. It therefore follows, under the rule above stated, that the things done or said by the insured which expressed or showed the state of his body were admissible.
2. The plaintiff called a physician, Dr. Walker, to whom the principal facts concerning the injury were stated, and asked his opinion as to the cause of the death of the insured, assuming the facts so stated to be true. The defendant contends that the hypothetical question so propounded did not fairly reflect the evidence because it did not include the statement that the doctor who had treated the insured for the injury had discharged him. We do not think the plaintiff was bound to include in the hypothetical question this fact. To have done so would have required the witness to base his opinion partly upon the opinion of the attending physician, when he should be required to give his judgment independently upon the facts stated to him.
3. Another contention of the defendant was that the hypothetical question did not include the symptoms which developed after the removal of the insured to the hospital at Grand Island. At the time the hypothetical question was asked by the plaintiff, evidence of the symptoms of the insured after his removal had not been offered. We do not think that in making his case the plaintiff was bound to anticipate facts to be proved by defendant, nor to include them in a hypothetical question. It is enough if such question fairly reflects the case as made by the plaintiff. The fact that such testimony was on file in the form of a deposition does not alter the rule. Such deposition might or might not be offered; and the plaintiff was not bound to anticipate its introduction.
4. It is strongly insisted that the court erred in refusing to direct a verdict for the defendant. It was contended by the defendant that the crushing of the foot of the insured was the extent of his injuries, while the plaintiff claimed that he was also hurt in his side. The plaintiff's evidence as to the bodily condition of the insured at the time he left on the trip to Grand Island depended largely upon complaints made by him to his mother and sisters as to the existence of pain in his left side and groin. The significance of these pains was not explained by any of the professional witnesses called, and the jury were left, if it believed the testimony of the members of the family of the insured, to draw without expert guidance such inference as seemed proper to it concerning the bodily condition indicated thereby. To the nonprofessional person pain is usually considered an indication of functional or organic derangement; and the jury, if it believed the insured suffered from such pains, might have drawn therefrom the inference that lesions of the affected parts still existed to which could be attributed his death, in the absence of any intervening cause.
The plaintiff, as we have already seen, called Dr. Walker, who was allowed to give his opinion of the cause of death in answer to a hypothetical question propounded to him, and he testified that he considered the injury the relative cause of the death. The evidence as to the cause of death offered by defendant was not at all conclusive. It appears...
To continue reading
Request your trial