# Insurance Company v. Mosley

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## Dissenting Opinion

    Clifford
United States Supreme Court
75 U.S. 397
Insurance Company v. Mosley
APPEAL from the Circuit Court for the Northern District of Illinois, the case being this:
The Travellers' Insurance Company of Chicago insured the life of one Mosley for $5000, in favor of his wife.
'Within ninety days, after sufficient proof that the assured at any time within twelve months after the date of this policy shall have sustained personal injury, caused by any accident within the meaning of this policy and the conditions hereunto annexed, and such injuries shall occasion death within three months from the happening thereof.'
The policy among other provisos contained this one:
'Provided always, That no claim shall be made under this policy by the said assured, in respect of any injury, unless the same shall be caused by some outward and visible means, of which proof satisfactory to the company can be furnished, and this insurance shall not extend to any injury caused by or arising from natural disease.'
Mosley having died within the term for which his life was insured, his wife, who alleged that he had died from personal injury, caused by accident, demanded the $5000 of the company, which they declined to pay. She thereupon brought assumpsit on the policy. The declaration alleged, that on the 21st of July, 1866, the said Mosley 'accidentally fell down a pair of stairs and was severely injured thereby, and that he, within three months after the happening of the said accident, to wit, &c., died from the effects of the said accidental fall, and that the death was occasioned by the said injury and accident, and that the defendant had sufficient proof of said accident and death ninety days before the commencement of this suit.' On a plea of the general issue and a trial before a jury, the main point in question was the cause of the death of Mr. Mosley; the plaintiff contending that it was the consequence of a fall that he met with in going into his back yard on the night between the 18th and 19th of July, 1866, and the defendant, that it was not.
It appeared that Mr. Mosley was in his usual health until that night; that he and Mrs. Mosley had gone to bed; that between 12 and 1 o'clock he got up and went down stairs; that he came up and complained to his wife and son of having had a fall; and that the symptoms were described by him at the time; that he continued ill until Monday, the 22d, when he died. There was testimony, medical and other, given of his mental and bodily condition from the time of the alleged accident up to the time of his death; there was also medical testimony given of his condition after death, and of an examination of the cranium and brain, externally and internally. The plaintiff insisted that the evidence she introduced tended to show that Mr. Mosley died in consequence of the fall before referred to, and the defendant insisted that the evidence introduced by the company tended to show that death was not caused by any fall, but was in consequence of disease, (congestion of the brain.)Mrs. Mosley testified in her own behalf, that on Wednesday night, the 18th of July, 1866, she and her husband had gone to bed. Between twelve and one o'clock he got up and went down stairs for the purpose of going out back; she didn't know how long he was gone. When he came back he said he had fallen down the back stairs and almost killed himself; that he had hit and hurt the back of his head in falling down the stairs which led out back. She noticed that his voice trembled, and she inquired into the matter at once. He complained of his head, and appeared faint and vomited; he threw up almost as soon as he got into the room; she got up, and he laid down on the sofa. He had nothing on but his pataloons and vest; she didn't sleep any more that night, and was up with him all night. He complained and appeared to be in great pain. She asked him if she should send for Dr. Webster, who lived near, but he said no; he thought he should be better, and she did not then call the Doctor. On Thursday morning he said he felt bad, and there was a recurrence of fainting.
To all that portion of the testimony of Mrs. Mosley which set forth the declarations of her husband about his falling down the back stairs and almost killing himself and hurting the back part of his head, the defendant's counsel objected, and their objection being overruled, the defendant excepted.
A son of the assured, testified in behalf of the plaintiff, 'that he slept in the lower part of the building occupied by his father; that about 12 o'clock of the night before mentioned he saw his father lying with his head on the counter, and asked him what was the matter; he replied that he had fallen down the back stairs and hurt himself very badly.' The defendants objected to both the question and answer. An exception to their admission followed.
The same witness testified further, 'that on the day after the fall, his father said he felt very badly, and that if he attempted to walk across the room his head became dizzy; on the following day he said he was a little worse, if anything.' The admission of this testimony also was excepted to by the defendants.
There was no witness who testified that he saw the deceased fall down stairs; though several did, that there were such back stairs as it was testified that he spoke of falling down.
Verdict and judgment having been given for the plaintiff, and the case being here, the questions as presented by the bill of exceptions were:
1. Whether the court erred in admitting the declarations of the assured as to his bodily injuries and pains?
2. Whether it erred in admitting such declarations to prove that he had fallen down the stairs?
Mr. Sansum, for the plaintiff in error:
Without spending time upon the first of the questions presented by a technical division of the bill of exceptions-and a decision on which, adverse to our view of law, does not affect our main objections-we contend that the widow must show—
1st. That her husband died from injuries caused by accident, and,
2d. That the proof thereof was satisfactory to the insurance company.
The insurance is not against death generally, but against death from accidental injuries.
1. It is expressly provided that proof satisfactory to the company shall be made. It is the judge as to what proof shall be satisfactory. This may be a hard agreement, but it is the contract between the parties, and the court will enforce the contract that the parties have made. The company, by refusing to pay, and by contesting the demand, says, that the proof of the injuries and accident are not satisfactory. There is no allegation in the declaration that proof of the injuries and accident has been satisfactory to it.
2. As it is a part of the case, that no witness was called to prove that the deceased fell down the stairs, it cannot be presumed that evidence was given to prove an accident. And supposing that the court shall go so far as to hold that the declarations of the deceased are admissible to establish the fact that he did fall, still there is nothing in them to show that it was an accidental fall.
The declarations of the deceased made to his wife and son four days before he died, ought not to have been admitted to establish the fact that deceased did fall down the stairs in question, because they are clearly hearsay, and they come not within any of the exceptions to the general rule that derivative or secondhand statements are not receivable as evidence in causa. The reasons against admitting them are that the party against whom the evidence is offered has had no opportunity to cross-examine the original source; and, that assuming the original statement to be correctly reported, it was not originally made under the sanction of an oath; and, though it were made under the sanction of an oath in judicio, it is not admissible unless the party against whom it is offered had the right and opportunity to crossexamine, but neglected it.
The fact which defendant in error seeks to establish by mere declarations, is not one of reputation, nor of pedigree. or boundary. None of these established exceptions apply.
Nor as dying declarations were they admissible. This is plain.
Nor are they res gestoe. Res gestoe are the surrounding facts of a transaction, and may be submitted to a jury provided they can be established by competent means, sanctioned by the law, and afford any fair presumption or inference as to the question in dispute. And again, declarations accompanying an act, explanatory of that act, are res gestoe. They are the surrounding facts, explanatory of an act, or showing a motive for acting. But the principal fact must be first established, and until it is established, surrounding facts are not admissible-and, certainly, exhibiting surrounding facts in not establishing a principal fact. For example: A merchant leaves his place of residence or denies himself to his creditors. That he left his place of residence, or denied himself to his creditors, upon an issue of bankruptcy, are material facts; and one of these being proven, his decla rations made to others explaining why he left it, or denied himself, are admissible as res gestoe; but it would not be competent to show what he said, unless it were first made to appear that he has denied, or left his place of residence.
Mr. Peck, contra, relied on Aveson v. Kinnaird as decisive of the case.
Reply.-The counsel for the widow cite Aveson v. Kinnaird, and it is relied upon. But that case makes against the plaintiff. The issue there was, whether the insured was in good health at the time the policy then in question was effected on her life by her husband. A few days after the physician examined her, and made inquiries of her about her health. She was seen in bed at 11 o'clock in the forenoon; and a witness was called to testify to the fact that she saw the deceased in bed at the time mentioned, and that the deceased then said she was not in good health, and that she was afraid she would die before the policy could be delivered. The fact that deceased was in bed was established by the witness. This was a material fact to be established upon the issue made in the case, viz., whether the deceased was in good health at the time; and doubtless the declarations of the deceased were admissible, explaining why she was in bed. Upon an issue as to whether the deceased was well or ill at the time in question, her declarations were admissible; for one's feelings while suffering from any malady are the true indicators of that malady, and how the deceased in the case cited felt could only be ascertained by what she said. The case was one of necessity as well as res gestoe. The very nature of that case made it necessary to show what the deceased said as to how she felt; and being found sick in bed, her declarations why she was there is a surrounding fact, explanatory of the material fact-being found in bed.
The declarations of the deceased, in the case at bar, as they show how he felt in the presence of the witnesses, are res gestoe so far as they are explanatory of the other facts that were occurring then. But as evidence of his fall down the stairs, they are not competent.
The fact that deceased declared to his wife that he had fallen down the back stairs and hit his head, is not the point here in controversy. The point in controversy is, did the deceased fall down the stairs in question, and was the fall accidental? The declaration of the deceased, made to his wife, as she says, several days before he died, is all that we have upon the facts in question. If not competent to prove the fall, how is it enough to prove the accidental character of it?
Mr. Justice SWAYNE delivered the opinion of the court.

## Notes

* ↑ Mima v. Hepburn, 7 Cranch, 290; King v. Inhabitants of Eriswell, 3 Term, 707; Ellicots v. Pearl, 10 Peters, 412.
* ↑ 6 East, 188.
* ↑ Ib.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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