Case one of two
164 Ky. 786
Court of Appeals of Kentucky.
CASUALTY CO. OF AMERICA v. TAYLOR.
May 20, 1915.
ACTION: Reversed.


Appeal from Circuit Court, Knox County.
Action by Sarah J. Taylor against the Casualty Company of America. Judgment for plaintiff, and defendant appeals.

CARROLL, J.
George F. Taylor had a policy of insurance in the appellant company; his widow, the appellee, being named as beneficiary. On April 30, 1913, Taylor was intentionally stabbed by one Thomas Brogan, and died on the 3d day of May following. The principal issue made in the record and briefs is whether his death was caused by the wounds inflicted by Brogan or by blood poisoning or gangrene that set up in these wounds soon after they were inflicted.

The policy contract stipulated that, if the death of the insured resulted from bodily injuries "effected directly and independently of all other causes through external, violent, and accidental means," the company would pay the principal sum of $2,000. There was a further condition in the policy that, if his death resulted from wounds "intentionally inflicted upon the assured by any person, the limit of the liability of the company should be one-fifth of $2,000, or $400." The company declined to pay the beneficiary exceeding $400, and thereupon this suit was brought, asking a judgment for $2,000, the full amount the company agreed to pay in case of his death from external, violent, and accidental means.

It is doubtful if the petition states a cause of action, but, in the view we have of the case, it is not important to point out the insufficiency of it. The answer pleaded that the insured came to his death by knife wounds intentionally inflicted by Brogan, and averred that, under the contract of insurance, the liability of the company was limited to $400, which sum it averred it had offered to pay. It also, subsequent to the filing of its answer, offered to confess judgment for this sum, and costs, with interest from the time of the death of the insured. On the trial of the case there was a verdict and judgment for $2,000, followed by this appeal. We think the liability of the company was limited to $400, and will briefly state the reasons for this conclusion. The evidence shows, without contradiction, that Taylor was intentionally attacked and stabbed by Brogan, whose evident purpose was to kill him, and he would almost certainly have done so except for the interference of a bystander. So that, if Taylor's death was the natural and reasonable result of the wounds inflicted by Brogan, there is no doubt that $400 is all the company should be required to pay in satisfaction of the policy contract. It is, however, insisted by counsel for the beneficiary that the death of the insured was not caused by the wounds inflicted by Brogan, but by blood poisoning or gangrene that afterwards set up in these wounds, and it is upon the theory that this blood poisoning or gangrene was an accidental, intervening cause that produced his death that the beneficiary was enabled to recover the sum of $2,000.

The doctor who attended the insured testified that he found him out on the ground where the difficulty occurred a short while afterward, and that he had several cuts about his body, one around his neck, others in the shoulder, a few on the hand, and one on the left thigh about six or nine inches long. He also said that none of these wounds were in a vital part, nor were they of such a nature as to produce death in themselves; that after washing his wounds and treating them with iodine to prevent infection, he dressed them; that the next day he visited the insured and washed and redressed his wounds with the usual applications and in the usual manner. Asked what caused his death, he said it was gangrene caused by infection, and that the infection was produced by germs that gained an entrance into the wounds. He also said that, while the knife wounds were not themselves fatal, the germs that produced the infection were able to accomplish this result on account of the wounds.

It further appears from the evidence of the wife and son of the insured that on the day following the injury they unloosened some of the bandages on his wounds, especially on his thigh, with their hands, which had not been washed or cleansed, and that the insured rubbed the wound on his thigh with his unwashed hands; and the doctor said that, assuming the germicides and antiseptics had performed their proper office, the loosening of these bandages and the rubbing of the wounds would have permitted the germs to gain an entrance, and it was possible that the wounds might have become infected in this way.

It also appears from the testimony of this physician that gangrene or blood poisoning is one of the consequences that might follow an open wound in the human body, and that the insured died as a result of the blood poisoning or gangrene which was caused, in the first instance, by the wound inflicted by Brogan, and that there would have been no blood poisoning or infection of any kind except for these wounds. It is also shown by his evidence that this infection may be produced as the result of the failure of the surgeon who dresses the wounds to properly disinfect his instruments; or, in other words, that blood poisoning or gangrene may set up in a wound as the result of very slight neglect or inattention, or from any cause that brings into contact with the wound some unclean object. The son and wife of the insured testified, in substance, that two days before he died they cut or untied the bandage around the wound on his thigh with their hands, and that he rubbed his hand over the wound.

We think from this evidence that it would be pure speculation and guesswork to say that the cause of the death of the insured, independent of other causes, was gangrene produced by the removing of the bandages and the rubbing of the wound. It is equally as reasonable, if not more so, to assume that the infectious condition that set up in these wounds was produced by the knife with which they were inflicted and by the unsanitary condition surrounding the deceased from the time he was cut until his death. The attending physician was not, of course, responsible for these conditions, and, we have no doubt, did everything he could do under the circumstances to properly dress the wounds and give to the patient such attention as he required. But nevertheless we are well satisfied that the evidence is entirely insufficient to show that the deceased came to his death from blood poisoning or gangrene that set up from some independent cause that intervened subsequent to the infliction of the wound.

Wherefore the judgment is reversed, and, if there should be another trial, and the evidence is substantially the same, the court will take the case from the jury and enter a judgment against the company for the amount for which it offered to confess judgment. In the event the case takes this course, the costs following the offer to confess judgment will be adjudged as provided in section 640 of the Code.

Ky.App. 1915.

CASUALTY CO. OF AMERICA v. TAYLOR.

176 S.W. 194, 164 Ky. 786

Case two of two
166 Ky. 323
Court of Appeals of Kentucky.
PACIFIC MUT. LIFE INS. CO. v. TAYLOR.
Oct. 20, 1915.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Action by Sarah J. Taylor against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals.

CLAY, C.
On October 8, 1912, the Pacific Mutual Life Insurance Company of California issued to George F. Taylor a contract of accident insurance, in which his wife, Sarah J. Taylor, was named as beneficiary. George F. Taylor died on May 1, 1913. Mrs. Taylor brought this suit to recover on the policy. The petition charges, in substance, that on October 8, 1912, the defendant signed, executed, and delivered to George F. Taylor a contract of insurance, in which plaintiff was made and named as beneficiary; that by said contract it agreed and promised to pay to her, as such beneficiary, the sum of $600, in case of the death of George F. Taylor caused solely by external, violent, and accidental means, excluding suicide or any attempt thereat; that George F. Taylor died on May 1, 1913; that his death was caused solely by external, violent, and accidental means, and not from suicide, or any attempt thereat; and that said contract of insurance was alive and in full force and had been so kept and maintained since the date of its execution and delivery. A trial before a jury resulted in a verdict and judgment in favor of plaintiff for $600. The company appeals.

On motion of the plaintiff below, the transcript of evidence has been stricken from the record. The policy of insurance is not made a part of the record, but appears only in the transcript of the evidence, which has been stricken from the record. In the absence of the transcript of the evidence, it will be presumed that the omitted portions of the record will support the judgment, and the only question to be determined is whether or not the pleadings support the judgment.

In the absence of the policy of insurance, we are unable to say that it contradicts the averments of the petition or the amended petition. It is insisted that the petition is defective because it does not allege that the premiums on the policy were paid, but merely that the policy "was alive and in full force and had been so kept and maintained since the date of its execution and delivery." It is argued that this allegation is a mere conclusion, and therefore insufficient. In the absence of the transcript of evidence, it will be presumed that the premiums necessary to keep the policy in force were paid. It is the rule that after verdict and judgment pleadings are liberally construed to sustain the judgment, and that any formal defect in the pleadings is deemed to be cured by a verdict and judgment.

Though the petition in this instance may have been technically defective, yet we conclude that, under the above rule, its allegations are sufficient after verdict and judgment to support the judgment.

Judgment affirmed.

Ky.App. 1915.

PACIFIC MUT. LIFE INS. CO. v. TAYLOR.

179 S.W. 199, 166 Ky. 323



     

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