Ward v. Ætna Life Ins. Co. of Hartford, Conn.

• Decision Date: 22 October 1908
• Docket Number: No. 15,279.,15,279.
• Citation: 82 Neb. 499,118 N.W. 70
• Parties: WARD v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
• Court: Nebraska Supreme Court

82 Neb. 499

118 N.W. 70

WARD

v.ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

No. 15,279.

Supreme Court of Nebraska.

Oct. 22, 1908.

Syllabus by the Court.

In an action brought to recover upon an accident insurance policy, where the question is whether death resulted from an accidental injury for which the insurer is admitted to have been liable, the bodily condition of the insured between the date of receiving such injury and his death is a relevant fact; and all things done or said by the insured which expressed or showed his bodily condition in reference to the injury are relevant.

Where his opinion as to the cause of death is asked of a physician called as a witness, it is neither necessary nor proper to include in the hypothesis the fact that the attending physician had pronounced the patient cured of an injury from which it was claimed his death resulted.

Error is not committed in permitting a hypothetical question which fairly reflects the case as made by the plaintiff because other facts afterwards established by the defendant's evidence are not included in the question. The fact that the defendant's evidence is on file in the form of a deposition does not alter the rule.

Whether the death of a person whose life was insured against death by accident was caused by an admitted accident, or resulted from some other cause, is a question for the jury, unless the proofs as to such cause of death are so convincing that from them all reasonable men in the fair exercise of their judgment would adopt the same conclusion.

Where a person accidentally injured is insured against accident under a policy which provides for the payment of a sum named in case death results solely from such injury within 90 days, all morbid changes in the exercise of vital functions or the texture of bodily organs which result from or are induced by such injury should be regarded as the effect thereof, and not as independent causes; and, when death results from such morbid changes, it is caused by such accident within the meaning of such policy.

Where a person, after recovery from an accidental injury, succumbs to a disease which would not have been fatal but for the lowered vitality following such injury, the disease, and not the lowered vitality, is the cause of death.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Douglas County; Sears, Judge.

Action on an accident policy by Bedelia Ward against the Ætna Life Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Reversed and remanded.Greene, Breckenridge & Matters, for appellant.

Weaver & Giller and John M. MacFarland, for appellee.

CALKINS, C.

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 15th he again entered upon his duties as fireman upon a train leaving Omaha for Grand Island that night at about 11:30 p. m. 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 (article 11, Digest of the Law of Evidence) 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' Ass'n v. Munson, 73 Neb. 858, 103 N. W. 688, 1 L. R. A. (N. S.) 1068, where it is said that “statements of fact fairly indicative of a relevant bodily condition of a 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....