United States Fidelity & Guaranty Co. v. McCarthy

• Decision Date: 18 June 1931
• Docket Number: No. 8903.,8903.
• Citation: 50 F.2d 2
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. McCARTHY.
• Court: U.S. Court of Appeals — Eighth Circuit

50 F.2d 2 (1931)

UNITED STATES FIDELITY & GUARANTY CO. v. McCARTHY.

No. 8903.

Circuit Court of Appeals, Eighth Circuit.

May 7, 1931.

Rehearing Denied June 18, 1931.

James C. Davis, of Des Moines, Iowa (Jesse A. Miller, of Des Moines, Iowa, on the brief), for appellant.

W. B. Sloan, of Des Moines, Iowa (W. C. Strock and C. S. Bradshaw, both of Des Moines, Iowa, on the brief), for appellee.

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

WOODROUGH, District Judge.

This suit was brought by Dr. Wilton McCarthy, a surgeon of Des Moines, for recovery upon an accident insurance policy issued to him by the United States Fidelity & Guaranty Company. The doctor sustained accidental injuries on the 6th day of December, 1922, and claims that the injuries so received resulted in continuous total disability. The insuring company admits the issuance of the policy, that it was in full force on the 6th day of December, 1922, and that the doctor did sustain accidental injuries on that date, but it denies continuous total disability. It paid him the weekly indemnity specified for total disability for the first year after the accident. It then refused to pay further, and the doctor sued and recovered as for total disability for the period from December 6, 1923, to October 22, 1925. The company paid the judgment. Thereafter the doctor brought this suit claiming further continuous total disability from October 22, 1925, up to November 7, 1929. The injury occasioned by the accident was to the doctor's right hand, and it appearing on the trial beyond dispute that the hand was no better than it had been, the doctor contended that the issue as to whether he was totally disabled was the same issue that had been tried between himself and the company in the first suit, and that it was settled in his favor by that judgment. He also contended that on the whole evidence every fact essential to his recovery had been so established that reasonable minds could not differ as to his right to recover. The trial court sustained his motion to direct a verdict for him on these grounds, and the company appealed from the judgment on the directed verdict. On the appeal, 33 F.(2d) 7, 12, 70 A. L. R. 1447, this court held that it was established by the judgment in the first suit that the doctor, "during the period of time for which indemnity was sought, and at the termination thereof, did, by reason of the injury to his hand, suffer total disability under the terms of the policy; that is, was unable to perform any and every duty pertaining to his occupation as a surgeon." It held further, however, that "the ultimate fact in the previous suit as to disability was total disability during the period for which indemnity was sought. The ultimate fact here is total disability for an entirely separate and definite period of time. That question was not in issue, and could not have been litigated in the former action. Each case stands upon its own bottom." This court then turned to the question of the evidence on the matter of total disability and held that it did not justify a directed verdict for either the doctor or the company, but presented "peculiarly fact questions for a jury." The case was therefore reversed and tried again and the question whether there was total disability during the period covered by the suit was submitted to the jury. There was a verdict in the doctor's favor, and from the judgment thereon the company prosecutes this appeal presenting assignments of error too numerous to discuss in detail.

Aside from the loss of one of his eyes in another accident, and the injury to his right hand involved in this case, the doctor enjoys good health so that the payment to him of $250 a week is, and apparently will be, a much greater burden on the company than if he had been killed or had suffered loss of limbs. The company in its brief before us computes that it may have to pay the doctor some $280,000 if we sustain the judgment and the doctor lives out his expectancy. But on this phase of the case we feel bound by what this court said on the former appeal. It "is of no moment * * * and is not material in this case. * * * It the company so wrote the contract."

Neither are any of the assignments relating to the trial court's refusal to take the case away from the jury to be sustained. There is no claim that there was any new evidence on the second trial of a character to justify the trial court in departing from the explicit holding of this court that the questions were fact questions for a jury. There was no dispute about the issuance of the policy by the company nor that the policy was in full force on December 6, 1922, nor that the doctor sustained accidental injury within the coverage of the policy on that date, nor that the injuries so sustained occasioned some disability. There was no dispute that the copy of the policy and the application therefor attached to the doctor's petition as an exhibit were true copies, nor that notice had been given. Nor was there any substantial dispute as to the condition of the doctor's right hand occasioned by the accident. The only question left in the case after the first appeal to this court was as to the extent of the disability during the particular period, and whether it was continuously total within the meaning of the provisions of the policy relied on.

Those the doctor relies on are as follows: His application (expressly made a part of the policy) states: "I am with self — surgeon (only)": "My occupation is surgical practice": "The duties of my occupation are fully described as follows: Surgeon (only)," and the policy says "United States Fidelity & Guaranty Company * * * does hereby insure Wilton McCarthy * * * by occupation Surgical Practice * * * for a weekly accident indemnity of two hundred fifty dollars, * * * Schedule II. Total loss of time. Or, if such injury * * * shall cause continuous total disability, and prevent the insured from date of accident, from performing any and every duty pertaining to his occupation, the Company will pay him the weekly accident indemnity above specified, for the period of such disability."

On the trial from which this appeal is taken the doctor swore as to the direct result of his accidental injury that there was no sensation left in the major part of his right hand, and only the little finger and half of the palm of the hand were really useful so that he could not properly diagnose by two handed palpation nor use the instruments whose use is necessary in surgical practice. That although he had submitted to five operations and long courses of treatment in the attempt to recover the use of the hand, and to fit himself for surgical practice, the hand had become no better, but worse. He described what his occupation in "surgical practice," "by himself," "surgeon (only)," had been for more than nineteen years before the accidental injury, and declared that he was and had been rendered totally unable to go on with it. He said that he understood too well what the responsibilities of a surgeon are to go back to his office and take his place there. That "you have to deal with life" and he felt all the time, knowing his physical incompetency, that it would be criminal and malpractice for him to attempt to practice surgery. Five of his professional friends corroborated him in practically all of his testimony, and undoubtedly a prima facie case was made.

The theory of the defense is very greatly elaborated by learned and able counsel for the company in its pleadings, testimony, numerous requests for instructions and requests for special findings, assignments of error and forceful arguments. A principal complaint here is that the theory of defense was not fairly submitted to the jury by the trial court.

Admittedly it had to be boiled down for submission to a jury. So analyzing the mass to define the theory we find that it proceeds from the obvious fact that the performance of the duties of every professional occupation includes and presupposes in the professional the exercise of many trained and developed powers. Conspicuously every such occupation includes the duties skillfully to observe, to estimate, to apprehend and to prepare for conditions and to consult with others about them and to resolve upon them preceding, accompanying and following professional action. And in all the professions there are specialists. There are theologians who do not preach, lawyers who try no cases, doctors who administer no potions and surgeons who never incise. Observing that surgical practice in no wise differs from all professional occupations in this general aspect, defendant centered upon a certain number of such incidents of the surgical practice, like diagnosis, consultation, pre-operating and post-operating attention and so forth, and developed that cripples could do those things and some other things and make a living at it, and it contended that the doctor could likewise. By agreement between the parties the doctor called five witnesses besides himself, and so did the company. All of the company's witnesses were crippled, some worse than the doctor, and all professed to be successfully engaged in surgical practice, some phase thereof, and all of them agreed that surgical practice could be carried on by one unable to use instruments. These witnesses contradicted the plaintiff's witnesses as to what the description, "surgical practice," covered, implying that it did not necessarily include the ability to use surgical instruments or to operate with them on human beings. It was a fair defense and no impropriety is charged in the conduct of it. But however elaborated the defense remained as succinctly epitomized in defendants' answer, "that by reason of the ability of the plaintiff to do and perform many of the duties hereinabove detailed, and many other duties pertaining to the occupation of surgical practice, the plaintiff is not entitled to...