Spicer v. Benefit Ass'n of Railway Employees

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Action by Leslie William Spicer and another, minors, by Mary E. Crandall, guardian, against Benefit Association of Railway Employees, a corporation, on a policy of accident insurance which promised to pay the beneficiaries of whom plaintiff was the guardian, $2,700 in the event Leslie V. Spicer lost his life "solely through external, violent, and accidental means". The answer denied that insured's death had occurred in that manner. From a judgment for plaintiff, defendant appeals.

AFFIRMED. REHEARING DENIED. The principal assignment of error challenges orders of the circuit court which overruled the defendant's motion for a nonsuit and for a directed verdict. Let us review the evidence, more especially that portion of it favorable to the plaintiff which the jury had a right to believe.

Leslie V. Spicer, 36 years of age, was a machinist's helper. Prior to the alleged injury, which we shall now describe, he had always enjoyed good health and was a large, strong, powerful man. May 26, 1931, Spicer, while working at his employment, received an injury on the back of the middle finger of his left hand which inflicted a wound about three-fourths of an inch long and one-fourth of an inch deep. It bled freely and he at once repaired to the first-aid kit where he obtained some gauze dressing and mercuro-chrome with which he dressed the wound. A rule of the shop required all injured men to file written reports of any injuries received by them, but Spicer did not report the above incident. The evidence indicates, however, that the employees preferred not to report minor injuries. After dressing his finger, Spicer continued at his work the rest of the day and also the following day. Several acquaintances of his who saw him in the days following the above alleged accident swore that he wore a bandage upon his left hand. One testified that he "looked pale". Another swore that three or four days after the accident he noticed that a "red streak had started up his arm and a knot was under the arm". Another testified that he saw Spicer bathe his hand in warm water and that he "was awful sick. He couldn't hardly lie down on the bed". The same witness said that Spicer at that time had such a severe chill that he wore his overcoat indoors, even though the day was warm. Still another described the lump under Spicer's arm as being the size of the metal end of a light socket. A witness who saw Spicer May 29th or June 1st testified that he "looked sick then — he sure did. * * * He had a horrible look on his face". He also testified that Spicer's left hand was in bandages and that, due to his inability to sleep, he was unable to obtain rest. Spicer's widow testified that his left hand had "become swollen and awful bad; hurt him so he couldn't sleep on account of it". She added that Spicer bathed it in hot water and suffered from it "quite a bit". As an additional remedy a hot-water bottle was applied to the hand. Mrs. Spicer testified: "I was up several nights all night long" with him, and added: "It got so bad it was all swelled up and red streaks went up his arm". She testified that more than one of these streaks extended the length of his arm and she, too, described the nodules in his arm pit. She swore that a few days after the alleged injury Spicer "had an awful fever". Dr. W.K. Ross, a physician in the employ of Spicer's employer, who was called as a witness by the defendant, testified that on May 27th he attended Spicer and continued to attend him thereafter until his death. He found "a little area of infection" upon the middle finger of Spicer's left hand which he lanced and from which he removed free liquid not in the nature of a core. He also found that on June 6th Spicer's temperature was 101 degrees. Upon his advice Spicer discontinued his work May 28th, and on June 10th was taken to a hospital in an ambulance. The death certificates prepared by Dr. Ross, pursuant to the requirements of section 59-1207, Oregon Code 1930, which states: "The certificate of death shall contain the following items: * * * (17) Cause of death, including the primary and immediate causes and contributory causes or complications, if any, and duration of each * * *" recites: "The cause of death was as follows: Lymphangitis arm from hand infection, 6/5/31 * * * Contributory (secondary) bilateral lobar pneumonia, 6/10/31". August 21, 1931, Dr. Ross, in his own handwriting, answered a series of questions propounded to him by the defendant in a document entitled Attending Surgeon's Certificate. From it we quote: "7. State the immediate cause of death, and particularly describe injury causing same: Lymphangitis of left arm from hand infection. 8. State the remote and contributing cause of death: Bilateral lobar pneumonia". The witness not only freely admitted that he had made the answers just quoted but did not lessen their effect by explanation. Dr. James Haun, a physician called by the plaintiff, in answer to a hypothetical question which outlined the facts developed by the plaintiff's lay witnesses, expressed the opinion that the alleged injury to the middle finger of the left hand could have resulted in lymphangitis and thereby have caused the death. He also testified that lymphangitis was capable of lowering the vitality of the patient until a condition favorable to the development of pneumonia occurred. Dr. Mark Phy, another physician called by the plaintiff, to whom was also outlined the facts of Spicer's illness as described by the lay witnesses, testified that it was "quite possible" for Spicer to have thus contracted a "systemic infection that might cause his death". Upon cross-examination, he amplified his answer thus: "Now, a man that has a history of an injury followed by red streaks up the arm and nodules in his arm pits, and then, after the usual inoculation period, suffers a systemic infection, it is quite probable, without some other evidence, that there is a definite relation to the primary wound". In a later answer, he added: "It is quite possible for a man to suffer from lymphangitis, and then have lobar pneumonia; that would cause death, following an injury of this kind. There usually enters in an inter-current infection. Most any of us in here could have lobar or any other type of pneumonia, if our resistance would not be capable of overcoming the natural infection that is constantly in our system. So if this man did actually have lymphangitis, it is quite possible it was the result of a lowered resistance in this man, and might have been responsible for the secondary or concurrent pneumonia which caused his death". Dr. Phy also testified that lymphangitis is regarded by medical men as "a very serious condition".

The defendant's answer did not concede that Spicer had sustained the alleged injury. Dr. Ross, the physician previously mentioned, testified that when he attended Spicer May 27th he found him suffering from "a condition which is known as general furunculosis"; that is, many boils or abscesses. According to his testimony, Spicer had "from six to ten of these small abscesses on each hand", and had consulted him two years previously about a similar condition. Dr. Ross testified that Spicer made no mention whatever of any injury. June 5th he saw Spicer again and found that the condition of his hands had greatly improved and that there was only one area which needed attention, being the back of the middle finger of the left hand which he lanced. He next saw Spicer June 6th. By this time the abscess was improved. "There was no free pus in it". June 8th he found "a little redness around the abscess and extending up the back of the hand". At that time, according to Dr. Ross, Spicer "appeared to be rather sick". His temperature was 101 degrees. He made an examination to determine the cause of the temperature and illness, but found no trouble in either the kidneys or the lungs. He testified: "It didn't look as though his hand was sufficiently infected to cause it" — that is, the temperature and the illness. He added: "The redness never extended beyond the region of the wrist", and that he found no swelled lymph nodes under the arm. June 10th he again saw Spicer. At that time he found him suffering from lobar pneumonia in the lower lobe of the right lung, and removed him to a hospital. The witness testified that the direct cause of Spicer's death was pneumonia, and that he stated in "the original death certificate" that lobar pneumonia was "one of the primary causes" of the death. In the certified copy of the death certificate, which he identified, the cause of the death was thus described: "The principal cause of death was as follows: Lymphangitis arm from hand infection, June 5, 1931. Bilateral lobar pneumonia, June 10, 1931". Seemingly, he believed that the boils, which he said he found on Spicer's left hand, had caused the lymphangitis, yet he agreed that a boil walls itself off and thus prevents its poisonous contents from entering the blood stream. Dr. Haun testified that the inflamed condition created by a boil is not lymphangitis but cellulitis. Dr. Clarence L. Gilstrap, a physician who was consulted by Dr. Ross June 17th concerning Spicer's condition, testified that he saw no red streaks upon Spicer's left hand or arm, and that the cause of Spicer's death was lobar pneumonia. He noticed small purple spots on both of Spicer's hands which he believed were scars left by the alleged furuncular condition, and added: "This man did not have blood poisoning; I think we are absolutely certain of that". Mary E. Crandall, who, until three years before the trial, was the wife of Spicer, and who saw him twice during the above illness, testified that she had never seen him afflicted with any boils. Spicer's wife testified that he had never had any boils or abscesses upon his hand during the time that she knew him.

It will be observed from the above review of the testimony that the plaintiff claimed that Spicer had suffered a cut upon the back of the middle finger of his left hand May 26th or 27th; that shortly thereafter a condition of inflammation appeared in the left hand: that red streaks were seen along the length of his arm; that both his left hand and the lymph nodes became swollen; that Dr. Ross stated in his certificate that the immediate cause of death was "lymphangitis of left arm from hand infection"; and that "the remote and contributing cause of death was bilateral lobar pneumonia". It will also be observed from the above reviewed testimony that Dr. Phy was of the opinion it was "quite probable" for the injury to the hand to have caused lymphangitis, resulting in death. Both he and Dr. Haun testified that lymphangitis can lessen the patient's resistance sufficiently to cause him to contract lobar pneumonia.

The assignment of error now under consideration presents the problem whether the wound upon the left hand was shown by the evidence to have been the cause of the lymphangitis, which Dr. Ross' certificate assigned as the primary cause of Spicer's death. We are not concerned with the conflict of the testimony. The jury has considered that controversy and resolved it in favor of the plaintiff; hence we must assume that in the course of his employment Spicer injured his left hand in the manner described by the witnesses. Many decisions of the various courts are cited in the briefs which have considered the problem of liability under the provisions of an accident insurance policy where a slight injury caused a disease which subsequently resulted in the assured's death. We have read these decisions, but find it unnecessary to set forth our review of them because appellant's brief frankly concedes: "The defendant is liable where the disease is caused and brought about by the injury". This concession is well justified by the authorities. It was incumbent upon the plaintiff to prove that the injury bore to the disease the relationship of cause to effect, and not leave the solution of the issue to speculation and conjecture by the jury: Goldfoot v. Lofgren, 135 Or. 533 (296 P. 843). The mere fact that the contingency insured against followed in the wake of an accidental injury is not proof that the death resulted from the injury. The connection between the two must be proven with reasonable certainty: Goldfoot v. Lofgren, supra; Frint v.Amato, 131 Or. 631 (284 P. 183); Lippold v. Kidd, 126 Or. 160 (269 P. 210, 59 A.L.R. 875); 17 C.J. 756. We believe that the aforementioned testimony established, with the required degree of cogency, the needed connection. The proof showed that the cut upon Spicer's hand could readily cause an infection. The evidence indicated that immediately following the injury the wound became inflamed. The day following the injury Spicer consulted Dr. Ross. The latter applied treatments to the precise spot where the plaintiff's witnesses testified Spicer had suffered the injury. The treatments prescribed by the physician included directions to bathe the left hand in hot water and also to apply a hot water bottle. The physicians agree that these are the remedies usually prescribed for blood poisoning. Dr. Ross lanced the spot which the plaintiff's witnesses testified had become inflamed, and he removed from it pus. The hand became swollen. Red streaks were observed the length of the arm and the lymph nodes in the left arm become swollen. At the same time Spicer developed a temperature and became ill. According to the medical experts, all of these conditions were evidence of lymphangitis and such a condition, according to them, could cause death. The same condition was capable of lowering Spicer's resistance sufficiently to subject him to lobar pneumonia. Dr. Ross' certificate assigned lymphangitis as the primary cause of death and pneumonia as a contributing cause. This case is, therefore, not like McCrosson v. Philadelphia Rapid Transit Company,283 Pa. 492 (129 A. 568), nor Anton v. Chicago M. St. P. RailwayCompany, 92 Wash. 305 (159 P. 115) (both cited by the defendant) where the courts held that the causal connection between the injury and the resulting disease is not established by evidence which merely suggests that the result "might have" been caused by the disease. The above circumstances also differentiate this case from Carnes v. Iowa State Traveling Men's Assn., 106 Iowa 281 (76 N.W. 683, 68 Am. St. Rep. 306), also cited by the defendant, where the plaintiff's evidence, with equal cogency, showed that either one of two possible causes, for only one of which the defendant was responsible, might have caused the death. Likewise, this case is not similar to Stanton v.Travelers' Insurance Co., 83 Conn. 708 (78 A. 317, 34 L.R.A. (N.S.) 445), also cited by the defendant, where the accident merely aggravated a previously existing disease which had already attained sufficient virulence to threaten the insured's life. The evidence reviewed above also distinguishes this case fromTrapnell v. City of Red Oak Junction, 76 Iowa 744 (39 N.W. 884), and Slack v. Joyce, 163 Wis. 568 (158 N.W. 310), where the evidence wholly failed to prove that the accident was responsible for the diseased condition. The case before us is similar in essential features to Western Commercial Travelers'Assn. v. Smith, 29 C.C.A. 223 (85 Fed. 401, 40 L.R.A. 653), andCary v. Preferred Accident Insurance Co., 127 Wis. 67 (106 N.W. 1055, 5 L.R.A. (N.S.) 926, 115 Am. St. Rep. 997, 7 Ann. Cas. 484), in both of which the court found that the evidence established a causal connection between the injury and blood poisoning which ultimately resulted in death, and, therefore, held that the beneficiary of the policy was entitled to a recovery. Accordingly, we conclude that the verdict and judgment are supported by substantial evidence which establishes with reasonable certainty the wound of May 26th as the cause of death.

The second assignment of error challenges the ruling of the trial court which overruled the defendant's objections to the hypothetical questions submitted to Drs. Haun and Phy. In support of this exception, the defendant argues that the questions sought the opinions of the witnesses upon the merits of the case. As will be observed from the foregoing review of the testimony of these two witnesses, this criticism lacks support. The questions inquired concerning the capacity of the wound to create lymphangitis and the capacity of the latter to cause death. These questions were followed by others which inquired concerning the probability of death ensuing from the conditions described in the hypothetical questions. It will readily be seen that the witnesses were not asked for an opinion concerning the merits of the case. The credibility of the witnesses, the soundness of their judgment and the existence of the facts recited in the hypothetical questions remained as issues for the jury's determination. See Goldfoot v. Lofgren, supra. Nor do we believe that the questions are subject to the next attack urged by the defendant wherein it argues that these inquiries sought the conjectures of the two aforementioned medical experts. Conjectures, speculations and guesses are not admissible: Storlav. S.P. S. Transportation Co., 136 Or. 315 (297 P. 367,298 P. 1065); Scarpelli v. Portland Elec. Power Co., 130 Or. 267 (278 P. 99); Wigmore on Evidence (2d Ed.) 445. From the answers made by the four physicians who testified, it is evident that much knowledge has been acquired through medical science concerning the nature of lymphangitis and blood poisoning. The qualification of Drs. Haun and Phy to answer the questions propounded to them is not contested. Since medical science reveals much concerning lymphangitis and septicaemia, we believe that it is safe to assume that these two qualified witnesses could answer the questions propounded to them without resorting to conjecture and guesses. The questions concerned the capacity of a wound received by a mechanic while working upon grimy machinery to create a condition of lymphangitis. It is a matter of common knowledge that physicians are frequently required to treat wounds received under such circumstances and to prevent resulting lymphangitis and septicaemia. The answers made by the witnesses indicate that they did not resort to guesses, but reverted to the experiences of medical men in treating such wounds and preventing ill after-effects. We, accordingly, conclude that the exceptions are without merit. This assignment of error reveals no error.

The next five assignments of error challenge five portions of the instructions of the court to the jury on the ground that in these portions of the instructions the court commented upon the facts, or assumed as facts, matters which were in issue. We have carefully studied these and the remaining parts of the instructions transcribed in the bill of exceptions. We are satisfied that the court submitted every issue of fact to the jury, and we also notice where it carefully cautioned the jury that all issues of fact were for the jury's exclusive determination. This being true, we find no error revealed by these assignments of error.

It follows from the foregoing that the judgment of the circuit court is affirmed.

RAND, C.J., BEAN and KELLY, JJ., concur.