Tromblee v. North American Accident Insurance

Kellogg, P. J.: It was for the plaintiff to allege and prove that bodily injuries sustained by her husband through accidental means, independently and exclusive of all other causes, resulted in his death. She alleges he was injured December 29, 1914; he died December thirty-first. The defendant denies the injury and contends that death resulted from heart disease and other diseases. A hackman swears that the deceased, in getting out of his hack, fell upon his back and head, and seemed dazed. Upon entering his house his wife, the plaintiff, says he was-dazed and complained of injury at the back of his head, and apparently suffered from the injury. Plaintiff’s expert evidence tends to show that death resulted from concussion of the brain. The defendant’s evidence is to the contrary, and indicates that it resulted from a diseased heart and that the deceased had other diseases which might well have caused his death. The lines were sharply drawn; able experts were called; their testimony cannot be reconciled; the judge, in substance, so informed the jury, and it was a question of fact for the jury, after having heard the experts and considered in full the details and results of the autopsy as to what was the cause of the death. They have decided all the questions of fact in favor of the plaintiff, and we are unable to say that such decision is not fairly sustained by the evidence. The plaintiff’s daughter was not at home at the time of the alleged injury. She returned home at about ten o’clock at night and did not see her father until the next morning at breakfast. She was asked: “ Did he complain of pain ? ” The defendant’s counsel objected as incompetent, improper, irrelevant and not a part of the res gestae. The objection was overruled and the defendant excepted. “ A. Yes, sir. Q. And did he [176] tell where it was ? A. The small of the neck, right down here in the neck.” It is urged that this evidence was incompetent and calls for a reversal. Prior to the time when a party could be sworn in his own behalf it was competent to prove his declarations of pain. (Caldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 id. 344.) But when a party was permitted to be sworn in. his own behalf it was held the rule was changed. The admission of such testimony seemed to have rested upon necessity, as otherwise there was no way of proving pain. But when the party could be sworn there was no necessity and the evidence was excluded (Roche v. Brookyn City & Newtown R. R. Co., 105 N. Y. 294, 296), although involuntary exclamations, which are natural concomitants and manifestations of pain and suffering are still admissible where they form part of the res gestae. (Kennedy v. Rochester City & Brighton Railroad Co., 130 N. Y. 655, 656.) The plaintiff, by reason of her husband’s death, cannot prove that he was suffering pain or where the pain was otherwise than by his declarations, and it seems that within the rule of the cases above cited such proof is admissible. We conclude, therefore, that the exception to this evidence was not well taken. The policy required that notice of the accident must be given to the company at its home office in Chicago “ as soon as may be reasonably possible.” The notice in this case was mailed to the local agents of the defendant at Glens Falls January nineteenth and by them was forwarded to the Chicago office of the defendant and it admitted receipt thereof to the plaintiff’s attorney January 23, 1915. The court properly refused to hold as matter of law that the' notice was not timely and • properly given under the policy. The plaintiff had a reasonable time under the circumstances in which to give the notice. It is evident that for some time after her husband’s death the plaintiff did not realize that death resulted from the injury. The complaint alleged that the insured, after alightingfrom an automobile, slipped and fell to the ground, receiving injuries covered by the said policy and from the effects of and as a result of which he subsequently died on the 31st of December, 1914. The defendant, at the opening of the trial, moved to dismiss the complaint upon the ground that it did not appear [177] that the death resulted directly from the accident, independently and exclusively of all other causes. The court held that the complaint, in substance, met the conditions of the policy; that if the death resulted from the accident there could be no other cause; that it alleged in substance that he died as the direct result of the accident and that that implied that he did not die of anything’ else, but suggested that if the complaint was defective an amendment would be allowed. No amendment, however, was in form made. The defendant excepted. The form of the complaint, as applied to this policy, is not to be commended, and while we think an amendment should have been in fact made, the question has been fully litigated; the requests of the defendant that the death must have resulted directly, independently and exclusively from the accident were charged, and it would seem to be a technical error now to reverse the judgment on account of the mere verbiage of the complaint when the facts were fully litigated, the complaint fully understood and the proof met the terms of the policy. We feel that if a technical error was committed in this respect it should be disregarded. The judgment should, therefore, be affirmed, with costs. All concurred; Cochrane, J., in result. Judgment and order unanimously affirmed, with costs.