Fidelity & Casualty Co. of New York v. Niemann

• Decision Date: 11 March 1931
• Docket Number: No. 8882.,8882.
• Citation: 47 F.2d 1056
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. NIEMANN.
• Court: U.S. Court of Appeals — Eighth Circuit

47 F.2d 1056 (1931)

FIDELITY & CASUALTY CO. OF NEW YORK v. NIEMANN.

No. 8882.

Circuit Court of Appeals, Eighth Circuit.

March 11, 1931.

Wayne Ely, of St. Louis, Mo., for appellant.

James J. O'Donohoe, of St. Louis, Mo., for appellee.

Before STONE and GARDNER, Circuit Judges, and WYMAN, District Judge.

WYMAN, District Judge.

This action was instituted by Ella Louise Niemann, as beneficiary under a certain policy of insurance issued by Fidelity & Casualty Company of New York, a corporation, by which, among other things, the defendant company insured Julius H. Niemann in the sum of $7,500 against bodily injury sustained through accidental means and resulting indepently and exclusively of all other causes in the death of the assured.

The plaintiff below, who was the wife and now is the widow of the insured, alleges, among other things, in her petition, that on or about the 26th day of February, 1929, while said policy of insurance was in full force and effect, the insured sustained certain bodily injuries by reason of an accidental gunshot wound which resulted, directly and independently of all other causes, in the death of the insured on or about the 27th day of February, 1929. It is also alleged that if the insured caused the gunshot wound which resulted in his death, his reasoning faculties were, at the time, so far impaired by physical and mental disease that he was unable to distinguish whether his act was right or wrong, and was not mentally capable of controlling his conduct rationally, and was impelled to said act by irresistible, irrational and insane impulses. The defendant, for answer, interposed a general denial.

Upon the trial of the case it was conceded that the insured died on or about the 27th day of February, 1929, as the result of a gunshot wound inflicted by the insured on the 26th day of February, 1929; that at the time of the self-inflicted injury and the death of the insured, the policy in suit was in full force and effect; and that if the plaintiff was entitled to recover under the policy, the amount of the recovery should be $7,500 and interest At the conclusion of the plaintiff's case, the defendant, without stating any specific grounds, demurred to the evidence. The demurrer was overruled and was renewed by the defendant in practically the same form at the conclusion of all of the evidence in the case. The demurrer was again overruled by the trial court, and the case went to the jury; the sole question submitted being whether, at the time of the self-inflicted injury, the insured was sane or insane. The trial resulted in a verdict in favor of the plaintiff, and judgment was entered accordingly for the full amount of the policy and interest. From the judgment thus entered the defendant has appealed to this court.

There is little, if any, dispute in the evidence, which discloses the following facts: Julius H. Niemann, the insured, was a traveling salesman, about 48 years of age; on or about the 10th day of January, 1929, upon removing a strip of adhesive tape from one of his toes, a slight abrasion of the skin was discovered; he immediately consulted a physician who had for some four or five years been treating him for diabetes; upon examination the physician discovered a slight infection of the toe and signs of gangrene; upon advice of his physician the insured went home, where he remained for rest and treatment; the infection progressed slowly at first, but became more active about February 1st, and after that it spread rapidly over all of his toes and the foot up to the ankle; insured suffered intense pain and was very restless and subsequent to February 1st he slept very little; his appetite was poor; he grew constantly worse; lost weight rapidly; his eyes became dull and sunken in appearance, and he looked worn and haggard; he became subject to delusions, and on various occasions accused his wife of having roasted his foot in a furnace, and of putting bugs in his drinking water, and in various other ways gave evidence of an irrational misapprehension as to existing facts; on the morning of February 26th a surgeon was called into consultation, and after an examination informed insured that it would be necessary to amputate his foot, and about noon of that day insured obtained a revolver from a dresser drawer and inflicted a gunshot wound, as a result of which he died on the following day. His physician testified that in his opinion the insured's mind was not normal for some time before his death, and that his mental condition grew worse as the disease progressed, and that during the last four days of his life he was not mentally capable of rationally controlling his actions; that he lacked mental capacity to distinguish between right and wrong in his conduct, or to understand the consequences of his acts; and that, in the opinion of the witness, the insured was insane at the time he committed suicide.

Dr. A. H. Dieppe was called as an expert witness, and in answer to a hypothetical question testified that, in his opinion, at the time the insured inflicted the gunshot wound which resulted in his death, he was not in possession of his mental faculties; was mentally incapable of rationally controlling his acts, and was insane.

Dr. Shutt, a witness for the defendant, testified that he examined insured on the same day and shortly before he shot himself; that after the examination he informed insured that it would be necessary to amputate the infected foot, and that insured seemed to be worried and bewildered; did not show the reaction to questions that the average man would; and that he did not react in a normal way.

Dr. Wolfert, a witness called on behalf of the defendant, testified as follows:

"Q. The statement of Mr. Niemann, Doctor, to the effect that he would rather die than have his foot amputated, do you say that was a rational statement? A. No. I think any statement that a man makes where he knows his life will probably be saved by a specific operation, and then states he would rather forego the operation and lose his life, than have the operation and save his life, it does not seem to me his mind would be normal when he made the statement.

"Q That is evidence of an abnormal mind? A. Oh, well, personally, I think that this man, with his long diabetic condition, and the absorption from his rotten, gangrenous foot, he was sick mentally, he was sick physically, he was sick in every way."

The plaintiff, after testifying to the long illness of insured, his intense suffering, loss of sleep, loss of appetite, his weak, haggard, and unkempt appearance, and his irrational conduct, stated that, in her opinion, he was insane when he shot himself.

Appellant makes several assignments of error, but has confined its argument to four points. It contends: (1) That its demurrer to the evidence should have been sustained; (2) that the court erred in permitting Dr. Dieppe to answer the hypothetical question propounded by counsel for plaintiff; (3) that its motion for an order declaring a mistrial because of improper conduct of counsel should have been granted; (4) that the court erred in overruling its motion for a new trial.

The last assignment of error cannot be considered. It has been repeatedly pointed out by this court that a motion for a new trial is addressed to the sound discretion of the trial court. It is designed to invoke the judgment of that court upon the alleged errors set out in the motion, and the ruling upon the motion cannot be assigned for error, nor reviewed by this court. Atchison, T. & S. F. R. Co. v. Howard, 49 F. 206, 4 U. S. App. 202, 1 C. C. A. 229; McClellan v. Pyeatt, 50 F. 686, 4 U. S. App. 319, 1 C. C. A. 613; Village of Alexandria v. Stabler, 50 F. 689, 4 U. S. App. 324, 1 C. C. A. 616; Little Josephine Mining Co. v. Fullerton, 58 F. 521, 19 U. S. App. 190, 7 C. C. A. 340; City of Lincoln v. Sun Vapor Street-Light Co., 59 F. 756, 19 U. S. App. 431, 8 C. C. A. 253; Yellow Cab Co. v. Earle (C. C. A.) 275 F. 928; C., M. & St. P. Ry. Co. v. Heil (C. C. A.) 154 F. 626; Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55; C., B. & Q. R. R. Co. v. Conway (C. C. A.) 29 F.(2d) 551; Southern Railway Co. v. Walters (C. C. A.) 47 F.(2d) 3.

The second point raised by appellant involves the ruling of the trial court in permitting Dr. Dieppe, an expert witness on the part of the plaintiff, to answer a certain hypothetical question propounded to him. In seeking to present this claim of error, appellant's counsel have wholly disregarded the rules of this court as to assignment of errors and statement of the same in the brief. Rule 11 of this court, referring to assignment of errors, provides that:

"When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected."

Rule 24, which deals with the contents of the brief, provides that:

"When such error is as to the admission or rejection of evidence, the statement shall quote such evidence with the rulings thereon, giving pages in the printed record where it occurs."

As stated in Haldane v. U. S. (C. C. A.) 69 F. 819, 821:

"We have invariably held that we would not consider alleged errors in the admission and exclusion of evidence unless the testimony that is claimed to have been erroneously admitted or excluded is set out substantially in the assignment of errors and in the brief, as required by rules 11 and 24 of this court."

Manifestly, the assignment of errors and statement in the brief are wholly insufficient in this regard, and the question which appellant seeks to present will not be considered.

During the trial, Dr. Shutt and Dr. Wolfert, two medical witnesses, and Johanna Weisert, a sister of insured, were called as witnesses on behalf of the defendant. The direct examination of each of these witnesses was limited to certain conversations between the insured and the witness. Upon...