Aetna Life Ins. Co. of Hartford, Conn., v. Ryan

• Decision Date: 16 December 1918
• Docket Number: 106.
• Parties: AETNA LIFE INS. CO. OF HARTFORD, CONN., v. RYAN.
• Court: U.S. Court of Appeals — Second Circuit

255 F. 483

AETNA LIFE INS. CO. OF HARTFORD, CONN., v. RYAN.

No. 106.

United States Court of Appeals, Second Circuit.

December 16, 1918

James B. Henney and Bouvier, Beale & Geer, all of New York City (Phelan Beale, of New York City, of counsel), for plaintiff in error.

Edward H. Daly, of New York City (Edward H. Daly, of New York City of counsel), for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The plaintiff has obtained a judgment for $12,045.84 damages and costs entered against the defendant, after a trial before a judge and jury.

The action was brought by plaintiff as the beneficiary under an accident insurance policy upon the life of her husband.

The complaint alleges that the insured lost his life because of an injury he sustained while a passenger on a train of the Interborough Rapid Transit Company in one of its subway stations in the city of New York. It is alleged that while he was entering the train he 'sustained bodily injuries effected solely through external, violent, and accidental means, to wit, by being struck by a closing car door of said train, which blow by said door precipitated, hastened, and developed a cerebral hemorrhage in the said Michael J. Ryan, who had arteriosclerosis, which hemorrhage caused the death,' etc. The injury was received on August 25, 1917, and death resulted on September 9, 1917.

The policy provided that no indemnity was payable unless the insured was injured or came to his death, 'directly and independently of all other causes, from bodily injuries effected solely through external, violent or accidental means, suicide (sane or insane) not included.'

The defendant sets up the defense that the beneficiary died as a result of disease.

The insured at the time of his death was 53 years old. He was bandmaster in the Catholic Protectory in the borough of the Bronx in the city of New York. On the morning of August 25th he left his home in Brooklyn and went by subway to the Protectory, which he reached about noon. He sat down in the dining room to eat his dinner, and about 12:15 p.m., while at the table and when he was speaking, he suddenly became dumb and could not hear when spoken to and fell to the floor and could not move his left arm. He was picked up and placed on a chair. An ambulance was called, and he was taken to the hospital, where he died on September 9th.

It appears that a witness who assisted in picking him up when he fell in the dining room of the Protectory was asked whether he had any conversation with Ryan after he fell. He replied:

'I was near him all the time. He was mumbling to me and the brothers that he was hit by the subway door, the center door.'

It was moved to strike out the answer on the ground that it was too remote and not part of the res gestae. The objection was overruled, and the court allowed the answer to stand, stating that the issue to which the statement had reference was 'as to whether there was an occurrence or blow at all and, as to that, I think this statement is a part of the res gestae. ' The witness did not testify as to any statement made by Ryan as to when he was hit, or where upon his body or other part of him he was hit.

The evidence was certainly inadmissible as a part of the res gestae. It does not appear when Ryan was hit by the subway door. It may have occurred at one time as well as another. No one knows how long after the event the narration was made. The res gestae was the accident. The declaration made by Ryan was no part of it. It was not made at the time of the accident, and it does not appear that it was so nearly contemporaneous with it as to throw light upon it. Res gestae is admissible because and only because it is so connected with the event which it describes that it is a contemporaneous part of and happens with the event. Vicksburg & Meridian Railroad v. O'Brien, 119 U.S. 99, 7 Sup.Ct. 118, 30 L.Ed. 299; Boston & Albany Railroad Co. v. O'Reilly, 158 U.S. 334, 337, 15 Sup.Ct. 830, 39 L.Ed.

1006; Keefer v. Pacific Mutual Ins. Co., 201 Pa. 448, 51 A. 366, 88 Am.St.Rep. 822. In Insurance Co. v. Moseley, 8 Wall. 397, 19 L.Ed. 437, which was an action on an accident policy, a declaration made by a deceased person was held admissible as a part of the res gestae. The case is distinguishable from the case at bar. The question there was whether the assured died from the effects of a fall downstairs in the night. The testimony of his wife showed that he left his bed between 12 and 1 o'clock and when he came back said he had fallen down the back stairs and almost killed himself. And the son, who slept in the lower part of the building occupied by his father, testified that about 12 o'clock on that same night he found his father lying with his head on the counter and asked him what was the matter and that he replied he had fallen down the back stairs and hurt himself very badly. The court in sustaining the admission of the evidence did so upon the ground that the declarations were made immediately or very soon after the fall. Justices Clifford and Nelson dissented. In that case it was known when the accident happened and the declarations were practically contemporaneous with it. In the case at bar it did not appear when the accident occurred. It might have been in the morning when the decedent started to come to New York, or it might have been when he got off to call at a store at Cooper Square as the testimony shows he did, or when he again took the subway train to go to the Protectory, or when he once more alighted from the train on arriving at his destination. And, indeed, the accident might have happened on a prior day. In any event, the declaration was not contemporaneous with the accident.

An examination of the record in this case, however, discloses a fatal defect. It appears established beyond controversy that the deceased at the time he fell to the . . . r in the Protectory was suffering from arteriosclerosis, and that the disease was in a well-advanced state and affected his entire vascular system. It extended throughout all parts of his body, including his brain. The disease results in a hardening and narrowing of the entire arterial system. The arteries become filled with lime salts and fibrous tissues so that the opening through which the blood passes becomes smaller and as the same amount of blood has to pass through the blood pressure is increased. As one of the witnesses testified 'it is just as if you had been running water through a half inch pipe, and then finally the diameter of the pipe has been reduced, and you are pumping it through a quarter inch pipe,' or an eighth of an inch pipe. And when the pressure becomes at length too high the blood vessel breaks at the weakest point. The arteries of the brain seem to be the ones which usually rupture under those conditions. The evidence showed that the deceased also was suffering from Bright's disease of a chronic nature, and that he had myocarditis, which is an inflammation of the heart muscle.

The autopsy disclosed that the deceased died from a hemorrhage in the brain, there...