Maryland Casualty Co. v. Stark

• Decision Date: 04 January 1940
• Docket Number: No. 9225.,9225.
• Citation: 109 F.2d 212
• Parties: MARYLAND CASUALTY CO. v. STARK.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F.2d 212 (1940)

MARYLAND CASUALTY CO. v. STARK.

No. 9225.

Circuit Court of Appeals, Ninth Circuit.

January 4, 1940.

Geo. B. Thatcher, Wm. Woodburn, Wm. J. Forman, and Thatcher & Woodburn, all of Reno, Nev., for appellant.

Lester D. Summerfield, of Reno, Nev., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment of the district court in a jury-waived case on a policy insuring the deceased, Charles William Stark.

The policy stated the insurance to be:

"* * * against loss resulting from Bodily Injuries effected independently and exclusively of all other causes directly through accidental means, as follows:

* * *

"* * * Subject to its terms, limits and conditions this policy covers the insured in the event of death * * * due to * * drowning, choking in swallowing * * * asphyxiation * * *."

The following exceptive provision was set forth in the policy: "This policy shall not cover * * * death * * * caused or contributed to directly or indirectly, wholly or partly, by bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which shall occur simultaneously with and through an accidental cut or wound * * *) or by any other kind of disease * * *."

The appellant contends that the evidence does not support the following finding of the court: "3. That on or about the 6th day of July, 1938, the said Charles William Stark accidentally fell into the Orr Ditch in Washoe County, Nevada, and as a direct result thereof, independently and exclusively of all other causes, the said Charles William Stark then and there died by drowning in said Orr Ditch. That said accident and death was not caused or contributed to directly or indirectly, wholly or partly, by bodily or mental infirmity, or by any kind of disease; that the hemorrhage on the brain of deceased disclosed at the autopsy was such that the deceased would have recovered therefrom and would not have died as a result thereof had he not accidentally fallen into the water in which he was drowned."; and that the court erred in refusing to find as requested that: "on or about the 6th day of July, 1938, the said Charles William Stark suffered a spontaneous subarachnoid hemorrhage, said hemorrhage causing him to lose consciousness, thereby causing him to fall in the Orr Ditch in Washoe County, Nevada. That because of said hemorrhage and unconsciousness, Charles William Stark was unable to extricate himself from the said ditch and said hemorrhage caused Charles William Stark to become nauseated. That while in the water said Charles William Stark asphyxiated upon his own vomitus, said vomitus becoming lodged in his bronchial tree, and by reason of said asphyxiation Charles William Stark died."

The body of the insured was found floating in the flowing water of an irrigation ditch, 1,200 feet down current from a bridge across it. This bridge was of concrete and was guarded by two concrete abutments on the east and west sides. At the northerly end of each abutment was a space of about four feet which was left unguarded as to the ditch. The parties agree that the deceased fell from the bridge into the ditch at the point where it was not guarded. There were no witnesses to the falling nor to what happened to the deceased from 8:15 a. m. when he was seen leaving his office near the bridge until his body was found in the ditch at 8:30 a. m.

Appellant states the sole issue of fact made by the pleadings and tried before the court to be "whether the deceased died accidentally, independently and exclusively of all other causes, or whether bodily or mental infirmity or disease caused or contributed to, wholly or partly, directly or indirectly, his death." It makes no contention of suicide.

On the day of the death an autopsy was conducted. The autopsy report stated "* * * A recent subpial hemorrhage 3 cm. in diameter and ½ mm. thick, fairly well circumscribed, is found close to the great cerebral fissure on the upper surface of the right occipital lobe and has apparently ruptured subdurally, since a thin film of subdural hemorrhage is seen over the right frontal lobe anteriorally, in all apparently...