Keefer v. Pacific Mutual Life Insurance , 201 Pa. 448 ( 1902 )

Opinion by

Mb. Justice Potter,

The real subject for consideration in this case is not accurately set forth by appellant in the statement of the question involved. The court below did not, as therein stated, reserve a point, that “ Under all the law and evidence in the case, the verdict must be for the defendant.” The actual point reserved was, whether there is any evidence that John W. Keefer’s death was caused solely by external, violent and accidental causes. Under this reservation, the question for consideration is not whether the insured did die from external, violent and accidental means, but whether or not there was any evidence in the case which would justify the jury in so finding. The court left it to the jury to decide whether John W. Keefer’s death was due solely to external, violent and accidental causes, or whether it was occasioned either wholly or in part by disease, reserving, for further determination, the question as to whether there was any evidence to justify the jury in concluding that the death was due to external, violent and accidental cause.

The appellant has presented here six assignments of error. The fifth of these is, that the learned court erred in entering judgment upon the question of law reserved. It does not appear, however, from the record that any exception was taken by plaintiff to the entry of judgment in the court below; and as Judge Shabswood said in Northumberland County Bank v. Eyer, 60 Pa. 439, “ It is evident that without a bill of exceptions, the facts admitted or found, on which the question was reserved, are not properly on the record.” This disposes of the fifth assignment of error.

Turning to the fourth specification, we find that it alleges error upon the part of the court, in reserving the question of law; but here again the record fails to show that any exception was taken to the form of the reservation of the question, upon which judgment was subsequently entered ; and under Rynd v. Baker, 198 Pa. 486, and cases there cited, the appellant cannot now be heard in this court against it. The question of law actually reserved was, “ Whether there is any evidence in this case that John W. Keefer’s death was caused solely by external, violent and accidental causes.” This was undoubtedly a good reservation, and is in accordance with the requirements laid down, in the line of cases, culminating in Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. 348. The fourth assignment of error must therefore fall.

We have not, however, rested upon the lack of compliance with technical requirements, but have carefully reviewed the testimony. We have looked in vain for any evidence upon which could be based a finding that the death was caused by external, violent and accidental means. Nor is there room for any such inference to be reasonably drawn from anything in the proofs. It is only by drawing an inference from an inference, instead of from a fact, or by basing a presumption upon a presumption, that such a result can be reached. The plaintiff’s right to recover was limited under the terms of the policy to death from violent, external and accidental causes. If death was the result of disease, the claim made here was without foundation. The burden of proof was upon the plaintiff, and how was it sustained ? The jury were asked to infer, first, that the plaintiff suffered a fall; second, that the fall was accidental, and not the result of disease such as vertigo or cerebral apoplexy ;' third, that death resulted as a consequence of the fall. All this in the absence of an eyewitness to the fact of accidental or external injury, and without direct evidence that there was a fall. No one testified how, when, or where, it occurred. Nowhere in the testimony does there appear anything more than a conjecture, that the death was caused by accident, rather than by disease. The physician who was in attendance upon the deceased for the two or three days intervening between the first seizure and the death, and who also made the post mortem examination, was unable to speak with any certainty or conviction as to the cause of death.

The expert medical testimony was strongly in support of the theory that death resulted from ursemic poison. Under such circumstances the finding of the jury that the cause of death was accidental and external, could be nothing more than a mere guess; how could a conclusion thus reached be sustained, in the absence of any direct proof as to the fact, the cause, or the effect of a fall. No presumption can with safety be drawn from a presumption.

The plaintiff’s first point requested the court to charge that the presumption in this case is that the contused wound upon the right temple of John W. Keefer was an accidental injury, and the court’s refusal to so charge is made the subject of the third assignment of error. But we see no mistake here, and we think the learned court was right. The point as presented was not in line with the question for determination. The inquiry was not as to the cause of the bruise, but as to the cause of the fall, and there could be no presumption as between disease and accidental cause, within the terms of the policy. This assignment is therefore overruled.

We are satisfied that the opinion of the learned court below, upon the question of law reserved, is fully vindicated by the facts of the case.

This leaves for consideration the first, second and sixth assignments, which all allege error in the rejection of the declarations of the deceased. They were rejected as being too remote in time and place from the main fact, to be admissible as part of the res gestee. As was said by our Brother Mitchell in Commonwealth v. Werntz, 161 Pa. 596 : “No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be part of the res gestee. Each case must necessarily depend on its own circumstances to determine whether the facts offered are really part of the same continuous transaction.”

In the present case the main fact inquired about was a fall, which if it occurred must have been almost instantaneous. It would be hard to suggest an instance in which the main fact would occur more quickly, and the event be sooner ended. It is unlike the case of a fight, more or less prolonged, or an assault, or a transaction involving some time in its occurrence. It would be an act practically no sooner begun than ended. If the "offer had been to prove an exclamation or a cry, uttered during the act of falling, or an explanation made immediately upon rising, and before sufficient time had elapsed to permit the possibility of deliberation or design, then the offer would have been within the rule. But as it was, every settled test excludes it. If the decéased fell while walking by himself, he got up an'd returned over a distance of several hundred feet, and a period of time varying from fifteen minutes to half an hour elapsed before he came walking deliberately back to the witnesses.

This under the circumstances was a marked break in the continuity of events; was quite sufficient to turn any explanation then made into .a narrative of a past occurrence ; was ample to permit of deliberation or design, and thus removed the impress of spontaneity. The deceased, had gone away from the place ; the act was done; the transaction was closed; therefore a conversation at a time some fifteen minutes later and at a place several hundred feet away, could not under the circumstances of this case be admitted as evidence. It would be no part of the occurrence, and would be only his own account of :the affair.

The assignments of error are all overruled, and the judgment is affirmed.