Mutual Life Ins. Co. v. Hassing

• Decision Date: 16 March 1943
• Docket Number: No. 2622.,2622.
• Citation: 134 F.2d 714
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. HASSING.
• Court: U.S. Court of Appeals — Tenth Circuit

134 F.2d 714 (1943)

MUTUAL LIFE INS. CO. OF NEW YORK v. HASSING.

No. 2622.

Circuit Court of Appeals, Tenth Circuit.

March 16, 1943.

Grant H. Bagley, of Salt Lake City, Utah (P. T. Farnsworth, Jr. and W. Q. Van Cott, both of Salt Lake City, Utah, on the brief), for appellant.

David J. Wilson, of Ogden, Utah, for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The Mutual Life Insurance Company of New York (appellant) issued three policies on the life of Clifford Eugene Hassing, in the face amounts of $1,000, $2,000, and $3,000, respectively, and his wife, Chloie P. Hassing (appellee), was made the beneficiary of each. The policies contained double indemnity clauses for accidental death. Two of them provided for double indemnity "upon receipt of due proof that such death resulted from bodily injury effected solely through external, violent and accidental means * * * upon the conditions set forth in Section 1." Section 1 provides, "The double indemnity will be payable upon receipt of due proof that the insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes * * * provided that the double indemnity shall not be payable if death resulted * * * directly or indirectly from disease or bodily or mental infirmity." The third policy is not materially different in form or substance. All of the policies were executed and delivered in the State of Utah.

On November 30, 1941, while all of the said policies were in full force and effect, the insured was accidentally killed by a train in Ogden, Utah. After this suit was filed by the beneficiary in the state court to recover the face amount and the double indemnity on each of the policies, the case was removed to Federal court, based on diversity of citizenship and requisite amount in controversy. Before trial on the issues, the insurer paid the face amount of the policies, but denied liability for double indemnity, on the grounds that death was not directly caused by bodily injury effected solely through external, violent and accidental means, but was directly or indirectly caused by disease, or bodily or mental infirmity. The beneficiary obtained a jury verdict in the District Court, judgment was rendered thereon, and the insurer has appealed, contending that the evidence is insufficient to support the verdict. The ultimate question presented by this appeal is whether the verdict of the jury is supported by any substantial evidence.

The evidence on which the jury's verdict rests is not materially in dispute and may be summarized as follows. The insured had for many years lived in Ogden, Utah, where he was engaged in the grocery business. He had long suffered from an inflammation or chronic infection of the inner ear, having received treatments for this ailment since 1928. In the course of this treatment, a polypus was twice removed from the ear by surgical operation, half of the ear drum was destroyed, and the labyrinth, which regulates the equilibrium of the body, was impaired, rendering the insured subject to vertigo and dizzy spells. One of the attending physicians testified that the insured complained of dizzy spells, and frequently had to support himself while standing to avoid falling. Noises confused him, and moving objects in front of him caused him to lose his equilibrium and the control of the muscles of his body. The physician also testified that these reactions are peculiar to this particular disease, although not present in every case, and that anything which increases the pressure on the labyrinth of the ear disturbs the equilibrium. Another physician testified substantially to the foregoing facts. He had treated the insured for the same condition of the ears during 1936 and 1937, during which time the insured complained of ringing in his ears and dizzy spells. The evidence further showed that the insured suffered a heart attack in March, 1941, which was diagnosed as a coronary occlusion, and remained in the hospital under an oxygen tent for about a month. In October 1941, the insured made application to the insurer for total and permanent disability payments under the policies, in which he stated that he had been disabled from following any occupation since March 1941, and the medical reports to the company verify his representations. This application was pending at the time of his death.

The evidence further shows that on the morning of November 30, 1941, approximately twenty minutes before his death, the insured left the office of his physician where he had received a treatment for the diseased condition of his ears, from which the physician testified he obtained relief which should have lasted for several hours. He walked down the street in the opposite direction of his home until he reached a railroad crossing. At this point, a train was moving slowly across the street in front of him. One witness testified that he walked with the insured until they reached the crossing, and both stopped on the curb about ten feet from the tracks and moving train; the witness crossed to the other side of the street, and when he looked back, the insured had walked to the center of the street and was standing about two and one-half feet from the side of the moving train, with his hands in his topcoat pockets. He saw Hassing go down on one knee, and "as I looked, he went down and his head went under the wheels." Another witness testified that he saw the insured walk out close to the freight train and stop, then he stooped over like he was looking in under the train, "then I saw him go headlong into the wheels — into the train. At the time, I thought he was trying to crawl under the train to get to the other side before the train had passed. That was the opinion I formed when he started going towards the train, and the next thing I knew, he was under the wheels. * * * Yes, there was a swaying of his head — the train was making considerable noise as it went by."

In order to recover, the appellee must bring herself within the coverage of the policies, and the coverage under the policies is measured by their plain and unambiguous terms and conditions. By their terms and conditions, the policies cover accidental death resulting from bodily injury, effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and not resulting directly or indirectly from disease or bodily infirmity. Mandles v. Guardian Life Insurance Company of America, 10 Cir., 115 F.2d 994. Manifestly, if the death of the insured resulted from bodily injury effected solely through external, violent or accidental means, independently and exclusively of all other causes, it could not have resulted directly or indirectly from disease or bodily or mental infirmity. Lee v. New York Life Insurance Company, 95 Utah 445, 82 P.2d 178. Conversely, if the accident causing death was in turn caused by disease or bodily infirmity, death could not have resulted from bodily injury effected solely through accidental means. It follows that if disease or bodily infirmity is the direct or indirect cause of accidental death, the loss is not within the coverage of the policy as defined by its terms, and there can be no recovery thereon. Mandles v. Guardian Life Insurance Company of America, supra; Clark v. Employers' Liability Assurance Company, 72 Vt. 458, 48 A. 639. The scope of our inquiry is not limited to the immediate or efficient cause of death, that is, whether caused by accident or disease, or the interaction of both. Cf. Browning v. Equitable Life Assurance Society, 94 Utah 532, 72 P.2d 1060, on rehearing, 94 Utah 570, 80 P.2d 348 (and cases cited therein). See also Lee v. New York Life Insurance Company, supra. Admittedly, the immediate and efficient cause of death was falling under a moving train, and the fall may be said to have been accidental. But as stated in the Browning case, supra, 80 P.2d page 352, "If the accident or injury resulting in the disability or loss was produced, caused, set in motion or operation by disease or infirmity, then it is indirectly...