Citations
- 63 Ohio App. 558
Full opinion text
Overmyer, J.
This action was brought by appellee as plaintiff in Common Pleas Court to recover on an accident insurance policy paying $600 for accidental death, issued to John L. Nichols, father of appellee, in December, 1921, by The Ridgely Insurance Company of Worcester, Massachusetts, which policy was later assumed by the appellant company.
J ohn L. Nichols died on December 28, 1938, and appellee claims his death was due to accidental injuries within the terms of the policy. Decedent had paid premiums from the date of issue to the date of his death. Appellant denies that the insured was injured as claimed, or that he sustained any accidental injuries, or that the injuries he sustained, if any, were the sole cause of his death as required by the policy, and claimed his death was caused wholly or partly by disease.
The only issue on the trial, therefore, was the cause of death of decedent, and on that issue the trial resulted in a verdict for the appellee upon which judgment was entered. Appellant appeals on questions of law, and assigns as errors the refusal of the trial court to direct a verdict for it; that the verdict is not sustained by the evidence and is contrary to law; improper argument to the jury; and failure to grant a new trial.
The policy held by decedent provided in substance for an indemnity of $600 to' be paid to the beneficiary in the event of death resulting solely by accidental injuries due to'violent external causes and leaving visible marks of wounds or fractures upon the body of the insured.
The decedent, aged 72 years at the time of death, was a printer and newspaper publisher at Stryker, Ohio, and had suffered for some months from myocardial degeneration of the muscles of the heart and had been treated for the same by his family physician, but was not confined to his home — on the contrary, he continued with somewhat reduced vigor his occupation and business activity up to his death. Shortly after midnight on December 28, 1938, he was walking from his print shop to his home, a distance of a few blocks, accompanied by his son, on sidewalks that were “very icy and slippery” according to the undisputed testimony of a number of witnesses, and when near the private walk leading into his home he fell upon the street sidewalk, causing an open wound on the bridge of his nose, which bled quite freely, bruises on his face and temple, and shock. In a few minutes he was dead.
The only eyewitness to his fall was the son, who, as executor, is appellee herein, and his testimony on the point is briefly this: -
“As we came to Depot street we came around the corner, he lit his flashlight and I stepped over on the other side of him, putting him next to the building. After we got beyond Mr. Richards’ building he fell forward on his face. I reached for him and couldn’t get him in time, couldn’t support him in time. After he fell he raised up and ashed for his glasses, and the light from his flashlight — the glasses hit in front and flashed and I reached down and picked them up and told him he should get up, and I reached over and put my arms around him and he sank on his face on the sidewalk. ’ ’
The examination of appellee continued as follows:
“Q. Was he conscious again after that? A. No, sir.
“Q. Were his glasses broken when you picked them up ? A. They were chipped. * # *
“Q. Did your father say anything after he fell? A. Not a thing. He just said ‘Oh.’ He said ‘Oh’ like that and fell.
“Q. Well, did you see exactly the motion of his body as he fell? A. Well, no, because I stumbled at the same time myself or slipped in reaching for him and I didn’t—
‘ ‘ Q. Will you tell us please what the condition of the sidewalk was at that point? A. Not only uneven but very icy and it was,just around the corner of a building where the water had congregated there or accumulated there.”
On cross-examination of appellee, the following testimony appears:
‘ ‘ Q. The first thing you noticed about his falling was when he said ‘Oh’? A. Yes, sir.
“Q. Did he — and he fell on his stomach? A. He fell forward.
“Q. And he lighted on his stomach? A. He was lying face down on the walk, yes, sir. * * *
*‘ Q. So that you wouldn’t say in what manner it was that he fell? A. I saw what manner he fell, certainly.
“Q. After he fell? A. While he was falling * * * I reached for him and couldn’t get him. * * * I saw him when he started to fall and when he finished falling, yes, because he bumped into me.”
The decedent’s body was carried into his home and laid on a bed. A physician was called, who arrived in fifteen minutes, and upon examination gave his opinion that death had occurred within two or three minutes after the fall.. The physician called was the same one who had been treating the decedent for his heart ailment and was and had been for some years the decedent’s family physician. We quote from his testimony as follows:
“Q. Could you tell from that examination [brief examination at home] whether or not there was any fracture of the skull? A. No, sir.
“Q. Do you have an opinion on whether or not there was a fracture of the skull? A. Yes, .1 have.
“Q. What is your opinion on that? A. My opinion is there was a fracture.
“Q. From your acquaintance with Mr. Nichols and your examination of him at that time, what in your opinion caused his death? A. From the appearance of the wounds and blood and so on, it looked to me as if it was caused by the accident — from the fall.
“Q. What was there about the blood or appearance of the wounds that led you to that conclusion? A. The wound showed some bleeding after the fall.
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