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NORWOOD v. GREAT AMERICAN INDEM. CO.

September 2, 1943

NORWOOD
v.
GREAT AMERICAN INDEMNITY CO.



The opinion of the court was delivered by: KALODNER

The plaintiff has brought two separate suits, one against Great American Indemnity Company, the defendant herein, and the other against the Prudential Insurance Company of America (the defendant in Cause No. 2699). By agreement both cases were tried together and resulted in separate verdicts in favor of the plaintiff against each defendant. Both defendants have filed motions to set aside the verdicts and judgments entered thereon and for the entry of judgment upon their motions for directed verdicts made at trial. The defendants also moved for a new trial.

 The policy of the Prudential Insurance Company of America provided: "The amount of accidental death benefit * * * shall be payable * * * immediately upon receipt of due proof that the death of the assured occurred * * * as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which * * * there is a visible contusion or wound on the exterior of the body * * * provided however that no accidental death benefit shall be payable if the death of the insured resulted * * * directly or indirectly from bodily or mental infirmity or disease in any form."

 It is the plaintiff's contention that the death of the insured resulted solely from an injury sustained in an accident -- a fall in a bathtub.

 The defendants maintain that they are not liable under the aforementioned provisions of the policy and that the death of the insured was caused wholly or partly by disease, physical impairment, and other conditions of ill health, affecting particularly the decedent's heart, blood vessels and other organs and parts of his body.

 The jury by its verdict rejected the contentions of the defendants after a rather lengthy deliveration. The issue was adequately presented to the jury. The Court in its charge instructed the jury that it was incumbent upon the plaintiff to show by a fair preponderance of the evidence that the death of her husband was caused solely by external and accidental means and further that the death was not caused by or contributed to, directly or indirectly, wholly or partly, by bodily infirmity or disease.

 The Court further charged that if the evidence pointed to a pre-existing infirmity or disease which may have been a contributing factor, the burden was upon the plaintiff to exclude the possibility that such pre-existing infirmity or disease contributed to cause the insured's death. The Court's instructions were in accordance with the principles enunciated by the Supreme Court of Pennsylvania in a number of recent cases. See: Watkins v. Prudential Insurance Co., 315 Pa. 497, 512, 173 A. 644, 95 A.L.R. 869; Lucas v. Metropolitan Life Insurance Co., 339 Pa. 277, 14 A.2d 85, 131 A.L.R. 235; Real Estate Savings & Trust Co. v. Metropolitan Life Insurance Co., 340 Pa. 533, 17 A.2d 416; and O'Neill et al. v. Metropolitan Life Insurance Co., 345 Pa. 232, 26 A.2d 898, 142 A.L.R. 735.

 The case took six days to try. There were some 650 pages of testimony and exhibits. As already stated, on the one hand the plaintiff contended that the insured's death was due solely to accidental causes, while the defendants contended that the insured's death was due to a chronic diseased condition, thus presenting a single fact issue. The jury chose to credit the plaintiff's side and accordingly found for the plaintiff. I am satisfied that the case was fairly and impartially tried and that the verdict of the jury was not against the weight of the evidence or against the law.

 The defendants specifically complain of certain errors as follows:

 (1) On the question of res gestae. The plaintiff, the wife of the insured, was permitted to testify, over the objection of the defendants, of the conversation she had with her husband (a Naval surgeon), shortly after the accident. She testified that on January 12, 1942, when they were in their room in the hotel, the husband, about 9:30 P.M. retired to the bathroom to take a tub shower, when she heard a "terrific crash". She went to the bathroom, opened the door and saw her husband in a half-sitting position trying to get out of the bathtub. She asked what had happened and he made some amusing remark that "he was trying to end his life on a piece of soap" and he handed her the piece of soap. He came out of the bathroom about four or five minutes later dressed in his pajamas, set down and smoked a cigarette and rubbed the back of his head. She asked him if he had hurt himself and he replied that "he had given himself an awful whack on the back of his head in a very vital spot." In a few minutes they went to bed but the husband did not fall asleep. In about twenty minutes or half hour she asked him why he was not sleeping and he said "he didn't feel very well, and he couldn't go to sleep." She turned on the light and he repeated again that "he had given himself an awful whack on the back of the head in a very vital spot." At that point he became quite pale and said he would smoke a cigarette. He propped himself up with a pillow and smoked a cigarette and chatted with the plaintiff, and as he was putting his cigarette out in the ash tray he said "I feel impending disaster. My heart seems to be missing a beat." She urged him to let her call a doctor, but he refused and told her to go to sleep. As he was pulling the bed clothes up over himself he turned and gasped and was dead before she could step from her bed to his. She fixes the time of his death at about 11 P.M. I believe that under the circumstances of this case the testimony was properly admitted. It has been well stated in Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87, 90:

 "No fixed time or distance from the main occurrence can be set up as a rule to determine what utterances shall be admitted. Each case must depend on its own circumstances. * * *

 "There must be some discretion lodged in the trial court in deciding whether such evidence is receivable as part of the res gestae. In determining the admissibility of such unsworn utterances, to a great extent a matter of first impression, considering all phases, much latitude should be given to the discretion of the court below. The fundamental thought should be, Did the declarant exercise her reflective faculties in her own interest in making the statement? If she did, or if there were grounds for the suspicion of it, the court ought not to admit the evidence."

 (2) On the admissibility of plaintiff's documentary evidence. Plaintiff offered in evidence the records of the Brooklyn Naval Hospital. ...


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