Lynch v. Northern Life Insurance

Mallery, J. This is an appeal by defendant from a judgment in favor of plaintiff entered upon the verdict of a jury. Appellant, an insurance company, issued a policy of accident insurance on the life of Dr. Cornelius J. Lynch, of Yakima, Washington. The policy in question insured against “loss resulting directly and independent of all other causes from bodily injuries sustained during the term of this policy and effected solely through accidental means.” Appellant introduced no evidence in the case, electing to stand on its challenge to the legal sufficiency of the evidence interposed at the close of respondent’s case. The insured, a practicing physician of Yakima, died July 18, 1941, following an abdominal operation performed on him July 14, 1941. Dr. Paul J. Lewis, who was called by Dr. Herbert C. Lynch, son of insured, went to the home of insured around nine or nine-thirty the evening of July 14, 1941. The insured, who was dull mentally by reason of his illness, then gave a history of having been sick since Saturday, July 12th, and of having had pain in his abdomen and vomiting. Dr. Lewis testified that Dr. Lynch had a temperature and that his abdomen “was markedly distended and extremely tender and rigid, what we call a surgical abdomen.” Dr. Lynch was immediately removed to a hospital and an operation performed on him that night by Dr. West, who was assisted by Dr. Lewis. *914 Dr. Lynch died at four-fifty a. m., July 18,1941. The official death certificate signed by Dr. Lewis recites that the immediate cause of death was “Ur.emia Due to Anuria Due to Ruptured Diverticulum with Generalized Peritonitis.” Dr. Lewis saw the deceased while he was at the hospital and stated that he was semicomatose; that he had an uremic odor to his breath; that he did not make any urine practically from the time he entered the hospital; that his blood test showed a blood urea of 90,_ while a normal one is 15, and that this meant he had a retention of waste products in his blood stream; that he had irregular, labored breathing and a rapid, irregular heart action; that these are all symptoms of uremia. Dr. West stated that, while the deceased was at the hospital, he should have passed 6000 cubic centimeters of urine, but he only passed 450. Charles D. Hessey, who had been for many years a warm personal friend of insured, testified that Saturday, eight-thirty p. m., July 12, 1941, Dr. Lynch called at the Hessey home on his way to the doctor’s cabin seven miles up the river. Hessey accompanied Dr. Lynch to the cabin of the latter, where they arrived Sunday noon, July 13, 1941. The two remained at the cabin until about six p. m., when they returned to the Hessey home for dinner. While at the cabin Dr. Lynch removed his top shirt and undershirt in order to be more free while disconnecting some water pipes and performing other chores. Hessey noticed on the doctor’s back a black and blue spot about three inches in diameter — “maybe in the small of his back, to the left of his spine.” He did not inquire nor did the doctor volunteer any information, how he received the black and blue spot; in fact, neither mentioned it. This black spot was not known to the doctors at the time of the operation, at the time of Dr. Lynch’s death, or at the making of the death certificate. On the evening of Dr. Lynch’s death, Dr. Ralph Shirey, pathologist at St. Elizabeth’s Hospital, and Dr. Lewis performed a complete autopsy. The autopsy revealed the rupture of the diverticulum and the condition of generalized peritonitis. Upon examination of the kidneys, the doctors *915 found about the pedicle of the left kidney a massive hemorrhage, a mass of clotted blood estimated at twelve ounces and filling the two hands of Dr. Shirey. They immediately turned the body on its side and there found on the exterior of the body over the left kidney and outside the area of hemorrhage an area of ecchymosis or a bruise, black in center but fading to the sides, about three inches in diameter, the same injury observed by Mr. Hessey a few days before. In explanation of why he had not discovered the kidney condition during the operation, Dr. West testified: “A. As I have said before in describing the diverticula, if they are ruptured, they are ruptured from the inside; in other words, it is the increase of pressure inside the bowel that ruptures this diverticulum; and, should he have gotten this blow and there happened to be some gas in the descending colon, and there practically always is gas in that location, that gas — its natural way to escape would be downward, and it blew out the diverticulum. Q. In other words, the internal abdominal pressure caused by the external violence resulted in the rupture of the diverticulum? A. In my opinion, that’s the way it happened. Mr. Bounds: You say it might, Doctor? The Witness: I say, in my opinion, that’s the way it happened. Q. Doctor, when you operated on Dr. C. J. Lynch, why didn’t you discover or why wouldn’t you discover a hemorrhage around the kidney, the left kidney, of Dr. Lynch? A. Well, for a very simple reason. In the first place, you are some little distance from this kidney area, and, in the second place, this hemorrhage is back of the posterior lining, we call it the peritoneum, but the kidney is back of that lining; it is in the abdomen, that’s true, but the kidney is not in the abdominal cavity as we understand it. That’s all covered by a lining. In other words, the abdominal contents are in a sac, and this kidney is outside of that sac, so-to-speak. Q. Your operation was— A. (Interposing) — inside the sac. My operation was all inside the abdominal cavity, as we call it. In other words, my operation was all inside the sac, and the kidney and its hemorrhage is outside the sac.” Dr. West was of the opinion that the black and blue spot was caused by external trauma or external violence. “As to the form of this trauma or form of this external violence, I have no idea. It might have been a blow; it might *916 have been a fall.” Dr. West further testified that in his opinion the same external violence which caused the black and blue spot caused the hemorrhage to Dr. Lynch’s kidney, and that it caused “the ruptured diverticulum of Dr. Lynch.” The situation as described by Dr. Lewis, and which he found to exist at the autopsy, was outlined to Dr. West by hypothetical questions, and, from this and the knowledge he had gained when he operated on the deceased, he gave the jury his opinion that there had been an external trauma, caused by a blow or fall, which had resulted in the hemorrhage around the left kidney, and, by reason of the presence of gas in the colon, the rupture of the diverticulum had resulted. An effort was made, on cross-examination of the physicians, to develop the view that the ruptured diverticulum was caused by constipated condition, and that, in the process of evacuation, the deceased might have overstrained. The physicians admitted that such a situation might cause a rupture, but Dr. Lewis had no knowledge of any constipated condition. Dr. Lewis found a constipated condition when he operated, which he broke up to avoid any future difficulty, but whether it was of such a character that had made evacuation difficult prior to- the time the deceased became ill, does not appear even by inference. Dr. West said gas would accumulate when there is not a bowel movement, but, when he operated, there was not an unusual amount of gas in the upper colon. The appellant assigns as errors the overruling by the court of its motions for a directed verdict, a nonsuit, and judgment notwithstanding the verdict, and the entry of judgment against appellant. We quote appellant’s contention on these: “Appellant bases its appeal on the propositions that the evidence as to the fact of an injury by accidental means, as well as the time of such injury, was entirely speculative and conjectural.” When Dr. Lewis saw the extensive external black and blue spot and the blood clot under it, he, as a physician, knew that it had been caused by the application of some *917 external force, and was competent to express that as his opinion. Neither he nor anyone else, other than an eyewitness, could tell whether the injury was accidental, but here the law comes to the rescue and indulges in a presumption and permits an inference to be drawn. We treated this subject in Carpenter v. Pacific Mut. Life Ins. Co., 145 Wash. 679, 261 Pac. 792, as follows, p. 682: “It is never presumed that one wilfully and purposely injures himself, or that another has wantonly or wilfully injured him. It would seem that, these marks of violent injury being shown to exist, a proper inference to dráw would be that they were caused by ‘external, violent and accidental means,’ as provided in the policy.” It would seem quite clear from this and the statements of Dr. Lewis and Dr. West that there was ample evidence from which the jury could find that the deceased had sustained an accidental injury and that it caused the blood clot around the pedicle of the left kidney. The next question the jury had to consider was whether the death of the deceased was the result of the injury. Dr. Lewis stated that the external trauma caused the hemorrhage around the pedicle of the left kidney and this in turn caused an anuria, which means a loss of the function of the kidney to produce urine, and that, when there is a trauma to one kidney, there is a reflex disturbance in the functions of the other kidney; that this is a matter of common knowledge; that, when the deceased’s kidneys failed to function and produce urine, waste products which should have been eliminated through the kidneys were retained in the blood stream and produced a condition of uremic poisoning, and this was the immediate cause of death. The appellant further contends that the injury to the kidney was not shown to be the cause of death because the possibility of the rupture of the diverticulum by some other possible cause was not negatived. It is true there is no testimony to the effect that the rupture could not possibly have been caused in any other way. Nor do we depart from the rule cited by appellant in Frescoln v. Puget *918 Sound Traction, L. & P. Co., 90 Wash. 59, 155 Pac. 395, in which this court said: “The cause of an accident may be said to be speculative when, from a consideration of all the facts, it is as likely that it happened from one cause as another.” That rule expresses no more than the general rule regarding the burden of the plaintiff to establish his case by a preponderance of the evidence. The bare possibility of the existence of a cause other than that relied upon does not preclude a preponderance of the evidence in its support. This is not a case where “it is as likely that it happened from one cause as another.” As was said in Letres v. Washington Co-Op. Chick Ass’n, 8 Wn. (2d) 64, 71, 111 P. (2d) 594: “A verdict does not rest upon surmise or conjecture when there is evidence that there is a greater probability that a thing happened in such a way as to fix liability upon the person charged with such liability than there is that it happened in a way for which the person so charged would not be liable.” The evidence in this case, as outlined above, shows that the deceased had sustained an external injury. The jury was instructed that the law presumed that such injury was accidental. There was evidence from which the jury could, and did, find that the injury caused the kidneys of the deceased practically to cease functioning and also caused the rupture of a diverticulum, and the uremia and peritonitis developed, from which death followed. There is no evidence in the record of death from any other cause or that either uremia or peritonitis was the result of anything other 'than the external injury. The evidence meets the test set forth in the above-quoted rules. The judgment is affirmed. Blake, Jeffers, and Grady, JJ., concur.