Aetna Life Ins. Co. v. Wicker

• Decision Date: 06 February 1917
• Docket Number: 153.
• Parties: AETNA LIFE INS. CO. v. WICKER.
• Court: U.S. Court of Appeals — Second Circuit

240 F. 398

AETNA LIFE INS. CO. v. WICKER.

No. 153.

United States Court of Appeals, Second Circuit.

February 6, 1917

Maurice C. Spratt, of Buffalo, N.Y., for plaintiff in error.

Cohn Chormann & Franchot, of Niagara Falls, N.Y. (Edward E Franchot, of Niagara Falls, N.Y., of counsel), for defendant in error.

Before COXE, ROGERS, and HOUGH, Circuit Judges.

COXE Circuit Judge.

The policy in question provides that for a period of one year beginning at noon on January 12, 1907, the insurance company will insure Charles S. Wicker and promises and agrees that in the event of the death of said Charles S. Wicker 'resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means, ' the sum stipulated in the policy should be paid. There is no doubt that the burden was on the plaintiff to satisfy the jury, by a preponderance of proof, that Charles S. Wicker received bodily injuries effected solely through external, violent and accidental means.

It is alleged that on the 11th day of February, 1915, Wicker accidentally slipped while walking on an icy pavement in the city of Niagara Falls and fell upon his right side with his arm doubled up under him across the right side of the abdomen. He suffered much pain during that day, ate little and retired early. The pain increased during the next day. The night following the pain increased and a physician was called. He found Wicker suffering from general peritonitis which about a week later resulted in death.

An autopsy was requested and granted and all the physicians present, whether representing the plaintiff or the defendant, agreed that Wicker died of peritonitis or inflammation of the appendix. If there were nothing but the fall on the icy sidewalk, the bending of the arm under the abdomen and the paroxysms of pain constantly increasing until death ensued, the question would be one of fact for the jury to say whether the fall produced the disease which caused the death. It being a question where men learned in the medical profession might assist the jury in arriving at a correct result, it was proper that the jury should have the benefit of their experience. It is unnecessary to enter upon a detailed analysis of their testimony.

Dr Chapin, who saw Wicker after the accident, and was in consultation with Dr. Scott, the physician for the Wicker family, testified upon facts, some of which he knew and some of which were assumed. In answer to the question, 'What was the cause of the appendicitis from which he suffered,' the doctor answered, 'The fall on the sidewalk.' Dr. Bentz, called for the defendant, in answer to the question, 'What was the cause...