GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION v. Savage

• Citation: 35 F.2d 587
• Decision Date: 07 October 1929
• Docket Number: No. 8326.,8326.
• Parties: GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, v. SAVAGE.
• Court: U.S. Court of Appeals — Eighth Circuit

35 F.2d 587 (1929)

GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, v. SAVAGE.^*

No. 8326.

Circuit Court of Appeals, Eighth Circuit.

October 7, 1929.

F. B. Critchlow, of Salt Lake City, Utah (George A. Critchlow, of Salt Lake City, Utah, on the brief), for appellant.

George F. Wasson, of Salt Lake City, Utah, for appellee.

Before VAN VALKENBURGH and COTTERAL, Circuit Judges, and SCOTT, District Judge.

COTTERAL, Circuit Judge.

Florence H. Savage, appellee, obtained judgment upon the verdict of a jury against the appellant insurance company upon an accident policy it had issued, on April 8, 1914, to her husband, Herbert F. Savage, naming her as the beneficiary, and insuring him against death from "bodily injuries effected directly and independently of all other causes through accidental means."

The main grounds urged for reversal are (1) that the evidence is insufficient to show that the insured sustained an injury that was the sole cause of his death; (2) that competent testimony of physicians, particularly of Dr. Galligan, was erroneously excluded; (3) that the right of the company to an autopsy was denied by the plaintiff and not adequately covered by the instructions to the jury.

The plaintiff claims her husband was in sound health before he sustained an accident, and the accident solely caused his death. The defendant claims he was afflicted with heart disease, and his death was due to that alone, or in combination with the accident. Because the sufficiency of the evidence is in question, we must review it, with regard to the accident and his previous physical condition. We first notice the testimony aside from that of Dr. Galligan.

At about 1:30 p. m., on December 31, 1926, Savage fell on his back at the fifth or sixth step, and slid "bumping down" to the bottom of the stairs, in the basement of the City and County Building, at Salt Lake City. He arose and said to the janitor he was all right, but after walking 30 feet to a boot black stand he sat down in a chair and said: "My God! I hurt my back. It is killing me, won't you do something for me" — adding he had slipped on a cigar stub, hurt himself, and wished he had been more careful. The janitor found he had no pulse and was cold. Some one gave him soda. He also said to Mr. Jensen, who came to him, "I am hurt awful bad," and complained of a pain in the small of his back on the right side, stooping and putting his hands on his back. He was taken to the sheriff's office and put on a couch. According to Jensen's account, he kept complaining every few minutes and would say, "God! that hurts me;" then he would feel easier and the pain recurred. His hands were cold, and they rubbed his hands and arms. His pulse was never more than 50, and down to 40 or 41. A Mr. Lawrence came and gave him a little whisky.

In half an hour Dr. Galligan came, put a stethoscope on his heart, felt his pulse, and said he would give him a little strychnine to bolster up his heart. Savage wished to go home, but he was taken to a hopital, Jensen accompanying him, and Dr. Galligan followed soon. On the way he again complained of pain in his back on the right side. He made no complaint to the doctor, except of his back. The doctor again said he would give him something for his heart, and return later and see what was the matter with his back, after ordering hot water bottles placed at his back and feet. The only complaint Savage made at the hospital, until 30 minutes before his death, was the pain in his back near his right kidney. Then he complained of his chest and lungs, as if there was a load of bricks on his chest, saying, "I don't know how long I can stand that; it is just so heavy it seems I can't lift that load." His back was never examined. The nurse said he complained only of a pain in his stomach; he was slightly cyanotic; he was propped up in bed, and hot water bottles were applied to his body. He died at 3:45 that afternoon, before the doctor returned.

He had left home that morning, saying to plaintiff he would go to Dr. Galligan's office to make him a present of a pair of gloves, visit the County Building, and return. At noon he telephoned her he would be at home early that afternoon. At 2:25, Dr. Galligan telephoned her Savage had met with an accident; it was nothing to worry about; he was all right; she didn't have to hurry, but to come down and see him; she could take him home in the evening if he were feeling all right; he didn't want to send him home, as it was too cold, and it would be better to send him to the hospital. She went immediately, arriving there at 3:50, but he had just died.

Dr. Galligan, called only by the defense, testified regarding the accident and his prior affliction. He had known Savage eight or ten years; treated him frequently for five years; his calls at the office being both social and professional. He was there at about 12:45 on December 31, 1926, and gave the doctor a pair of driving gloves. At the sheriff's office he told the doctor he had slipped and fallen on a cigar stub and hurt himself, pointing to his stomach and tenth rib area, and thought he would be all right if he could get the gas off of his stomach. The doctor gave him a "hypodermic" of strychnine to bolster up his heart action, finding him very ill and desirous of going home, but told him he should go to the hospital and he would telephone his wife. His pulse was 48, regular, slow and weak; he was cyanotic; his breathing was labored and shallow, with a grunting respiration, which he claimed to be due to pain in his stomach and right side. At the hospital, he was found to be in an extremely critical condition, and cyanotic. The doctor examined his heart, abdomen, liver, and back, and gave him a heart stimulant. His pulse had not increased. His abdomen showed no evidence of distention or rigidity; he complained of much pain chiefly in his chest, and a feeling of pressure and difficulty in breathing. The doctor signed orders for the nurse of caffein and sodium benzoid, heat, liquid foods, elevation of head, and enema. An examination after Savage's death showed no sign of bruise or fracture, internal hemorrhage, or injury to liver or spleen.

The doctor had an opinion as to the cause of his death, which would be incomplete without reference to prior information or history of the case, the other contributory factors. He signed a certificate of death, showing it was due to "Acute Cardiac Dilatation, 2½ hours, contributory, fall on steps of County Building (secondary)." On the cover of a hospital folder or chart prepared by him appeared, "Traumatic shock from fall." His final diagnosis was, "Acute Cardiac Dilatation, traumatic shock from fall, a progressive heart disease, enlargement of the heart, a damaged heart, etc."

Mrs. Savage also testified regarding the health of her husband. He was very well the morning of the day of the accident; his health had been generally good; he had not complained of being ill for years any length of time, and during 16 years of their married life he never complained of heart trouble or organic disease. He took care of the fruit and chickens, helped cut the lawn, became tired, but not more so than other men. When he telephoned at noon on December 31, 1926, he did not mention his health. He was never seriously ill; once had ptomaine poison — in 1923 — developed from a banquet, but didn't have dizzy spells and worked all that day. He had consulted Dr. Bailey about it. Dr. Galligan came and prescribed for him. He was confined to the house for three days. She did not recall any other doctor treating him for three or four years, except occasionally Dr. Beer for stomach trouble. He had gastritis in 1924 or 1925. Dr. Galligan did not tell her of seeing him just before the fall, nor that he had a heart attack. Two acquaintances testified to his physical activities, apparent vigor and health, and the absence of complaint by him. The janitor at the County Building said that, before the accident, he looked apparently well — erect and steady.

Dr. Beer testified he knew Savage about 25 years and treated him as a patient, but never discovered any heart disease. Examining him several times, he found him suffering at times from irregularity of digestion or bowels. In answer to hypothetical questions based on the testimony connected with the accident, his opinion was he died from internal hemorrhage as a result of the fall; there was no evidence of acute dilatation of the heart, but, if there was, it was due to a reflex nervous condition brought about by the accident. He saw Savage about Christmas, and he seemed to be always perfectly well. Dr. Richards, on like hypothetical questions, expressed the opinion that the accident precipitated the death, and it could have been due to a rupture of a blood vessel, a blood clot, or the shock; he did not think there was a dilatation of the heart. Dr. Brown examined Savage for insurance in March, 1924, and found his heart and pulse and blood pressure and urinalysis normal, and no physical defect. On December 8, 1926, his general appearance was good, with normal blood pressure, pulse, heart, lungs, and kidneys.

Dr. Viko testified for the defense upon hypothetical questions that in his opinion the principal cause of the death was heart disease and the fall the contributory cause. Dr. Van Scoyoc testified also for the defense; his opinion based on like questions was the death was caused by heart disease, which may or may not have been contributed to by the fall, and the fall would not cause a rupture to the kidney or the liver.

From his résumé, it appears on one side there was evidence of prior health, absence of symptoms of heart trouble, the fact of the accident, and expert opinion the death was due to the accident. On the other, the evidence, including opinions, tended to establish heart trouble was a primary or one cause of the death. In determining whether the finding of the jury was justified, the test...