Western Travelers' Accident Association v. Munson

• Decision Date: 17 May 1905
• Docket Number: 13,807
• Citation: 103 N.W. 688,73 Neb. 858
• Parties: WESTERN TRAVELERS' ACCIDENT ASSOCIATION v. LENA MILLER MUNSON
• Court: Nebraska Supreme Court

103 N.W. 688

73 Neb. 858

WESTERN TRAVELERS' ACCIDENT ASSOCIATION v. LENA MILLER MUNSON

No. 13,807

Supreme Court of Nebraska

May 17, 1905

ERROR to the district court for Douglas county: JACOB FAWCETT JUDGE. Affirmed.

AFFIRMED.

O'Neill & Gilbert, for plaintiff in error.

Wright & Stout, Watt G. Sheldon and Frank T. Ransom, contra.

ALBERT C. DUFFIE and JACKSON, CC., concur.

OPINION

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 accidently 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 furnishing and filing 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 afterwards disclaims knowledge of the exact time, place and manner of receiving such accidental injuries in nowise 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 circumstances, 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 and Missouri River Railroad, near the town of Brush, Colorado; 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 afterwards he was seen in Akron Colorado, where, at 11:30 P. M., he boarded the caboose of a freight train on the Burlington and 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, Colorado, 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 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 hours thereafter suffering from injuries peculiarly likely to result from the accident to the train on which he was a passenger; and that within four days thereafter he died of such injuries. It is true the conductor of the freight train testified that he was in the cupola of the caboose when the accident occurred, and that the assured was lying on one of the seats, apparently asleep; that the accident caused no sudden stopping of the car, and no unusual jolt or jar, and, apparently, did not awaken the assured, or cause him to change his position. He also testified that as a result of the accident the engine separated from the cars and the air brakes were immediately set. He was the only witness present with the assured on the caboose, and the defendant insists that his testimony absolutely negatives the theory that the assured was injured in that accident. We do not think so. The jury were not bound to accept his testimony at its face value. He was not wholly a disinterested witness. He was conductor of the train, and, to some extent, was responsible to his employer for its proper management and the safety of his passengers. His home is in Denver, and he attended as a witness at the request of his employer. As against his testimony as to the effect of the accident on the caboose is the evidence of another trainman to the effect that the caboose, under such circumstances, would stop or slacken its speed suddenly, and with a jolt or jar. Taking into account the nature of the accident, this evidence is more in accord with reason and common knowledge, and the jury had a right to accept it as true. Taking the evidence as a whole, we are satisfied that the inference drawn by the jury therefrom that the assured died of injuries received while riding on the...