United States Casualty Co. v. Malone

Sam C. Cook, P. J., delivered the opinion of the court. The appellee brought suit against the appellant on’ an accident insurance policy in which it was provided that the insurance is “against loss resulting directly and independently of any and all other causes from bodily injury effected solely through external, violent, and accidental means,” and which policy provided for various bene [79] fits, including a death benefit of seven thousand, five hundred dollars. The suit was for the death of' the deceased, Stephen Nelson Malone. His death was caused, according to the death certificate, by “diabetic gangrene, moist type, left foot, contributory diabetes mefitis.” It is contended by the appellee that the proximate cause of the death was an accident resulting in an abrasion of the skin on the toe of his left foot which became infected thereafter and approximately caused the death of the deceased. There was a judgment in the court below for the plaintiff for said amount with interest thereon, from which judgment this appeal is prosecuted. We have carefully examined the evidence in the record, and we think the proof is insufficient to show that the injury was caused by an accident or through accidental means. The only testimony to establish the alleged accident is the statement by the deceased to Ms physician, who first treated the abrasion, that he thought the abrasion was caused by his rubbing his toe with a towel. The physician had no knowledge of Ms own as to what caused the abrasion. When he was called to treat the abrasion, he found the toe slightly infected. While the statement of the deceased to his physician is admissible in evidence for the purpose of showing the basis of an opinion by the physician, and his opinion as to the injury and the extent of the injury, it is not sufficient to prove the main fact of the accident. As to this, it is a mere self-serving statement. It has no probative value tas to such fact. It further appears from his statement to his physician that, if the injury was caused by rubbing, the rubbing was voluntarily done, and this would not constitute an injury through accidental means. The proof is wholly insufficient to establish liability. The judgment of the court below is reversed, and judgment here for appellant. Reversed,