Opinion
No. 4226.
January 16, 1930.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Action by Marie Leefson against the London Guarantee Accident Company, Limited. Verdict for plaintiff, defendant's motion for new trial was denied, and defendant appeals. Affirmed.
The opinion of Kirkpatrick, District Judge, follows:
This is a suit upon an accident insurance policy. The plaintiff, beneficiary, obtained a verdict for the principal sum, based upon the death of her husband, the insured. The defendant has moved for a new trial.
The first question is whether, under the circumstances shown, the death of the plaintiff's husband was a risk covered by the policy. The general insuring clause insures "against bodily injuries effected * * * through accidental means, directly and independently of all other causes. * * *" The schedule of indemnities provides in clause C that, "if within two hundred and sixty days from the date of the accident * * * the Insured dies as the result of injuries as aforesaid the Company will pay the Principal Sum. * * *" The court instructed the jury in substance that the injuries referred to meant not merely the first breaking of the skin or immediate result of the collision with some outside object, but that it meant the entire bodily disorganization following the accident, and included the entire course of that condition until it ended either in recovery or death. In other words, it practically meant a disabling injury upon which a claim could be based. The jury was then instructed that death was not a part of the injury, but a consequence of it, which, if it has occurred, gives rise to a particular right to claim the whole face of the policy. Thus in a death case the policy really deals with three distinct elements as a basis of liability: First, the accident, which the policy refers to as "accidental means"; second, a bodily injury; and, third, death. The jury was further instructed that, as applied to the plaintiff's proofs, the accident would be the fall of the deceased in the row boat, and that the injuries would be disablement or bodily condition arising from such accident, that it was necessary to a recovery that the plaintiff show by the weight of the evidence that the injury was effected by reason of the accident directly and independently of all other causes, and that, if any diseases which the insured might have had at the time of the accident or his physical condition contributed in any way to his injury, the plaintiff could not recover. The court said, "That means that if the insured was in a diseased condition at the time that this accident happened, and if that diseased condition contributed to or was a cause of his subsequent condition and his subsequent injury, then it is not a risk covered by the policy." The jury was also instructed that, so far as the death was concerned, if the injuries resulted solely from the accident without any contributing cause, then there was no requirement that the death itself result solely from the accident or the injuries uncomplicated by other causes.
I am satisfied that this is a correct interpretation of the terms of this policy. There is perhaps a natural tendency to treat accident insurance policies as though their terms were uniform, but the rights arising from them are contractual, and must be determined with careful reference to the terms of each policy. In this case it only causes confusion to refer to decisions upon policies which require that death must result from the accident or from the injury independently of all other causes. Kerns v. Ætna Life Ins. Co. (C.C.A.) 291 F. 289; Order of United Commercial Travelers of America v. Nicholson (C.C.A.) 9 F.2d 7; Maryland Casualty Co. v. Morrow (C.C.A.) 213 F. 599, 52 L.R.A. (N.S.) 1213, all cited by the defendant. That is not what this policy provides. It says that the injuries must result solely and independently of all other causes from the accident, but as to the death it merely requires that the insured must die as a result of injuries. Why it was written just this way is not easy to say. It is unlike any policy I have found in any of the decided cases. It means that, given an injury effected solely by accident without contributing causes, there may be a recovery, even though, after the injury is received, other causes accelerate the death. Such causes might be unskillful surgical treatment, delay in getting proper medical attention, exposure, or infection. Perhaps it was intended to eliminate the many doubtful and perplexing questions which arise in determining the exact nature of contributing causes of death in cases where it is perfectly clear that the major cause is an accidental injury.
However that may be, the defendant does not raise the question of any cause intervening between the injury (taking it as I have defined it) and the death. His whole contention is that the gangrenous condition of the foot did not result from the accident independently of other causes, but that it was produced, in part at least, by disease existing in the insured at the time of the accident. The result is that, so far as this case is concerned, the burden put upon the plaintiff by the court's instructions was quite as severe as though the jury has been told that the death must result independently of other causes from the accident. Even if the correct construction of the policy were as contended for by the defendant, it would make no practical difference in this particular case, and the defendant could not have been harmed by the instructions.
The defendant further contends that the plaintiff's evidence upon the question of the cause of the injuries and death is so unsatisfactory and contradictory as to bring it within the rule stated in Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104. That case involved the question whether a serious infection of a man's foot resulted from an injury to his heel sixteen months before or from a recent blister produced by an ill-fitting shoe. The evidence showed two different causes, either of which might have caused the condition. It was a purely scientific medical question, and the only evidence possible was the testimony of experts. The net result of the testimony of the two experts called by the plaintiff was that the injury might have resulted from either cause (although one said that "very probably" it came from the accident). Hence the verdict of the jury could only have been a guess. If the opinion of the court be read (particularly at page 61 of 289 Pa., 137 A. 107), it will be seen how carefully the rule is limited to the precise situation presented to the court.
In the case now before the court, the state of the evidence is entirely different. The accident occurred in June, 1925. If it had been conceded that the plaintiff at that time was suffering from some disease, then whether or not that disease contributed to the accident would have been a matter for expert testimony only, and the rule of Mudano v. Philadelphia Rapid Transit Co. might have applied. The plaintiff's position, however, was that the insured was at the time of the accident in good health, and not suffering from any disease. That was purely a question of fact. As bearing upon it, the plaintiff produced the testimony of three lay witnesses all closely associated with the insured, who testified that his appearance and manner indicated that he was in excellent health, and one medical witness, Dr. Keene, who just after the accident made a physical examination of the plaintiff, and testified that his general condition was good. It will be noted that the defendant's claim was that the plaintiff was at the time suffering from arteriosclerosis, heart disease, and diabetes. Dr. Keene took his blood pressure, and found it only a little elevated, he examined his heart, and found it normal, and he had an urinalysis made which showed no sugar in the urine. It is true that Dr. Keene had been giving the insured osteopathic treatments for several years for poor circulation, but that merely went to the credibility of his definitely expressed conclusion. It is also true that Dr. Gordon, called by the plaintiff, testified that from his observation of the insured at about the time of the accident he concluded that he had heart trouble. He was not the insured's physician, however, and did not make any physical examination of him, basing his opinion merely on what he observed from casual contacts. There was also evidence in the plaintiff's case which showed that during the period the insured was in the hospital (November, 1925, to February, 1926) he had all of the diseases referred to, although Dr. Jones testified that he was never thoroughly convinced that the insured was diabetic at all, and Dr. Behrend said the condition of his arteries was about what was to be expected of a man of the insured's age. All this, however, merely brings the case within the familiar general rule that, where the plaintiff's case contains contradictory evidence, it is for the jury to reconcile such contradictions (Danko v. Pittsburg Railways Co., 230 Pa. 295, 79 A. 511), but fails to call for the application of the special rule of the Mudano Case. Thus, in this case, the jury merely had to say whether they believed Dr. Keene's testimony as to his condition at the time of the accident or whether they believed Dr. Gordon or were convinced from the condition existing at the time of the insured's death that he must have been in bad health at the time of the accident. This is quite different from the Mudano Case, in which there was no positive testimony upon which any finding supporting the plaintiff's theory of the case could be made. I conclude that the case was properly submitted to the jury upon the question of whether the insured's death was such as to give rise to liability under the policy.
The next question is as to notice. The provisions for notice in the policy are: "Written notice of injury on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the Company. * * * Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible." In construing these provisions, the court held that, inasmuch as no disabling injury resulted from the accident within 20 days, it was not reasonably possible to give notice of the accident as required, and that it was a question for the jury to determine whether, under all the circumstances of the case, notice was given as soon as was reasonably possible. The facts as shown by practically undisputed testimony were that, during the summer following the accident, the insured suffered considerable inconvenience and pain, but was not prevented from pursuing his usual occupations until November 6, 1925, on which date he remained indoors, went to bed, and summoned a physician; that on the 16th he was removed to a hospital; that about a week or so later an operation was advised; and that on the 27th was removed to another hospital, where he was operated on and subsequently died in February of the following year. Notice of the accident was given on December 13, or about 5 weeks after he became disabled. There was evidence that while at the hospital he suffered a great deal of pain, could not sleep, and as a result was given narcotics. There was also evidence that he did not some to take his condition seriously, and was very anxious to get back to his business. The jury was instructed that it was a question for them to say whether the notice was given within a reasonable time after November 6, the latest date upon which they could say that there was an injury of which notice could be given.
The court accepted the rule of Travelers' Ins. Co. v. Nax (C.C.A.) 142 F. 653, that any failure on the part of the insured to give notice as required by the policy barred the wife's rights as beneficiary, and so instructed the jury. The court also recognizes the rule of Metropolitan Casualty Ins. Co. v. Johnston (C.C.A.) 247 F. 65, 7 A.L.R. 175, that, where the facts are not controverted or no doubtful inferences can be drawn from them, the question whether or not notice was given within a reasonable time is a matter of law for the court to determine, but in this case, while the facts are practically undisputed, they admit of varying inferences, and the question is within the province of the jury. My attention has not been called to any case in which the court has held as a matter of law that a delay of 5 weeks in giving notice from the first day on which it could possibly have been given, the insured being confined to bed during the whole 5 weeks, and most of the time in the hospital, removed from his business and affairs, and suffering great pain, was an unreasonable time.
Motion for a new trial is denied.
Layton M. Schoch, of Philadelphia, Pa. (Pepper, Bodine, Stokes Schoch, of Philadelphia, Pa., of counsel), for appellant.
L. Stauffer Oliver, of Philadelphia, Pa. (Paxson Deeter, of Philadelphia, Pa., of counsel), for appellee.
Before WOOLLEY and DAVIS, Circuit Judges, and MORRIS, District Judge.
Affirmed on opinion of Kirkpatrick, District Judge, sur motion for a new trial.