Opinion
No. 37383.
Filed May 28, 1970.
Witnesses: Evidence. The necessity and sufficiency of medical opinion to sustain a finding of causation in favor of the proponent of the evidence varies according to circumstances.
Appeal from the district court for Boone County: C. THOMAS WHITE, Judge. Affirmed.
Walter, Albert, Leininger Grant and Noyes W. Rogers, for appellant.
McFadden Kirby, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
In an action on an accidental death insurance policy, jury verdict went for the beneficiary. Insurer appeals. The question is sufficiency of the evidence to sustain a finding that the insured died of accident from generation of atmospheric electricity by thunderstorm.
The insured, Jim C. Christo, assisted by his son Tim, age 13, was farming 160 acres on March 30, 1968. At 4:15 p.m. after coffee at home with his daughter and wife, plaintiff herein, he went to a field. He was there situated about 1/4 mile from a field that Tim was plowing. Jim began operating a tractor that was towing a harrow in 4 sections, 24 feet wide, and with 300 teeth of steel. At 4:30 p.m. plaintiff and Tim saw the tractor-harrow moving aimlessly without an operator. Jim was found prostrate some distance away.
Plaintiff examined the body at the scene. She saw an unnatural appearance of hair which she then ascribed to dust. There was an abrasion 1 1/2 inches wide with three drops of blood on the left side of the pate. A few drops of blood were observable in the left ear. Plaintiff found no pulse and no sign of life.
Jim had been working in a storm area. Plaintiff and Tim testified to a sprinkle and loud thunder nearby, but not to lightning flashes. A witness 0.9 miles southeast of the farm had noted loud, crackling thunder and lightning flashes coming from the direction of the farm. A neighbor 2 miles away had heard crackling thunder in that direction, but she had seen no lightning flash.
Plaintiff at the mortuary noted that part of deceased's hair was brown, coarse, straight, and brittle — characteristics not present prior to death. A neighbor described the hair as dry like straw or an "over-processed permanent."
Jim, age 50, had not complained of illness on the day of his death. His medical history was negative.
Dr. Gerald J. Spethman on gross examination of the body at the mortuary noted only solid, dried blood, "not a very large amount at all," in the left ear. A spinal tap was normal. He formed no opinion of cause of death.
A pathologist, Dr. Roderick R. Landers, examined the heart, part of the lungs, aorta, kidneys, liver, and spleen. The heart showed some arteriosclerotic plaqueing and some hardening of the arteries. The disease was normal for a man age 50. Dr. Landers formed no opinion of cause of death, but he could not rule out heart disease. He associated a usual burn with skin probably charring and reddening, and with singed hair changing in color from black to gray and in texture from smooth to coarse. Referring to the deceased's hair, the doctor testified: "Yes . . . it was possible that it was due to a burn."
The necessity and sufficiency of medical opinion to sustain a finding of causation in favor of the proponent of the evidence varies according to circumstances. c. Yount v. Seager, 181 Neb. 665, 150 N.W.2d 245 (1967); Clouse v. St. Paul Fire Marine Inc. Co., 152 Neb. 230, 40 N.W.2d 820, 15 A.L.R. 2d 1008 (1950). Weak circumstances may call for strong medical opinion. At the other extreme, circumstances may exempt the proponent from offering medical opinion.
A jury might reasonably find a number of noteworthy circumstances. The age and health of Jim. The width of the harrow. The operating state of the machinery without Jim. The absence of teeth marks on the body. The color and texture of the hair. The medical testimony. The risk of death from the lightning.
The evidence is sufficient to sustain the verdict. The judgment is affirmed. We allow plaintiff $500 for services of her attorneys in this court.
AFFIRMED.