Nelson v. Business Men's Assur. Co. of America, 6955.

Decision Date22 December 1939
Docket NumberNo. 6955.,6955.
PartiesNELSON v. BUSINESS MEN'S ASSUR. CO. OF AMERICA.
CourtU.S. Court of Appeals — Seventh Circuit

Edgar F. Thoma, of Elmhurst, Ill., and James F. Wright, of Chicago, Ill., for appellant.

Arthur S. Lytton and Olaf A. Olson, both of Chicago, Ill. (Harzfeld, Beach & Gordon, of Kansas City, Mo., of counsel), for defendant-appellee.

Before EVANS, TREANOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Plaintiff, as the named beneficiary, sued the defendant on an accident insurance policy on the life of William John Nelson. There was a trial before a jury. At the conclusion of all the evidence the court instructed the jury to return a verdict against the plaintiff, and judgment was entered thereon. To reverse the judgment, plaintiff appealed.

The policy insured the deceased against loss resulting solely from bodily injuries effected directly and independently of all other causes through accidental means.

The evidence discloses, without contradiction, that prior to May 16, 1936 the insured, 45 years of age, was able-bodied and appeared to be healthy, had been continually employed, and had never required the services of a physician except for an attack of influenza many years before his death.

On May 16, at about 1:30 P. M., the insured and his son were endeavoring to remove linoleum from the kitchen floor of his home. A gas range was upon the linoleum, to the left of a door leading out from the rear of the kitchen. To remove the linoleum, it was necessary to raise the stove.

The insured stood on the threshold of the kitchen door, his right hand placed against the door jamb for support. He leaned forward, turning his body to the right, and reached down with his left hand to lift the stove. While lifting one end of it, he slipped on or off the threshold, striking the right side of his abdomen against the door jamb. He exclaimed "Oh", that he was hurt, and complained of violent pains. At about 3 o'clock he was driven to a doctor's office; not finding the doctor in, he was returned to his home. That evening he complained of being ill, vomiting many times and perspiring freely. About 3 A. M., May 17, the physician examined the insured and directed that he be taken to a hospital. At 11 o'clock he was operated upon and was found to have a ruptured gall bladder. He died on May 23 of peritonitis, which followed the rupture of the gall bladder.

The medical testimony on behalf of the plaintiff tended to prove that the insured was examined at about 7 P. M. on May 16. His temperature and pulse were normal and no tenderness or bruises were found over the abdomen. Between 3 and 4 A. M. on May 17 the physician called at the insured's home and found him in severe pain, his temperature low, and the abdomen very rigid. He ordered the insured to a hospital. About 7 A. M. the physician decided it was a surgical case and operated by making a mid-line incision in the upper abdomen. He found a ruptured gall bladder. The bladder was friable, several stones were embedded in the wall of the bladder, and there was considerable bile in the abdomen.

From answers to hypothetical questions propounded to medical experts it appears that a person suffering from a chronic gall bladder infection might live on indefinitely and die from other causes; and it also appears that the lifting of the stove and the falling against the door frame, either or both of those elements, might or could have brought about the condition resulting in the insured's death.

Upon cross-examination of one of the...

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8 cases
  • Clay County Cotton Co. v. Home Life Ins. Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 26, 1940
    ...attention is directed to Scanlan v. Metropolitan Life Insurance Company, 7 Cir., 93 F.2d 942, and Nelson v. Business Men's Assurance Company of America, 7 Cir., 108 F.2d 363. There was an accident that could have injured the insured. Three witnesses saw and described the lunging of the hors......
  • Preston v. Aetna Life Ins. Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 16, 1949
    ...420, and the decisions of this court in Scanlan v. Metropolitan Life Insurance Co., 1937, 93 F.2d 942, and in Nelson v. Business Men's Assurance Co. of America, 1939, 108 F.2d 363. The Rebenstorf decision was by an intermediate appellate court of the First District of Illinois. Leave to app......
  • McKeever v. Prudential Insurance Co.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 2, 1953
    ...1939, 299 Ill.App. 71, 19 N.E.2d 420, Scanlan v. Metropolitan Life Ins. Co., 7 Cir., 1937, 93 F.2d 942, and Nelson v. Business Men's Assur. Co. of America, 7 Cir., 1939, 108 F.2d 363, the court "* * * We believe that the weight of authority throughout the country supports the rule announced......
  • Reitan v. Travelers Indemnity Company
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 20, 1959
    ...New York Life Insurance Co., 1913, 228 U.S. 364, 369, 33 S.Ct. 523, 57 L.Ed. 879. As this court said in Nelson v. Business Men's Assur. Co. of America, 7 Cir., 1939, 108 F.2d 363, 365: "A question of law is thus presented which calls for a consideration of the record, not for the purpose of......
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