Binder v. Commercial Travelers Mut. Acc. Ass'n, 65

• Citation: 165 F.2d 896
• Decision Date: 15 January 1948
• Docket Number: No. 65,Docket 20734.,65
• Parties: BINDER v. COMMERCIAL TRAVELERS MUT. ACC. ASS'N OF AMERICA.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

165 F.2d 896 (1947)

BINDER v. COMMERCIAL TRAVELERS MUT. ACC. ASS'N OF AMERICA.

No. 65, Docket 20734.

Circuit Court of Appeals, Second Circuit.

November 28, 1947.

On Rehearing January 15, 1948.

A. Harold Frost, of New York City (Bernard Jenkin, of New York City, on the brief), for plaintiff-appellant.

Henry C. Moses, of New York City (Moses, Nehrbas & Tyler, of New York City, on the brief), for defendant-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Plaintiff, the widow of Arthur J. Binder, is the beneficiary named in an accident policy on his life issued by defendant. The policy insured against death "which is the direct and proximate result of and which is caused solely and exclusively by external, violent and accidental means." Plaintiff claimed that her husband's death was due to an automobile accident, while defendant contended that his death was due to a coronary thrombosis, just prior to and actually the cause of the accident. Defendant also claimed that the proof of loss submitted to it by plaintiff was insufficient. Trial to a jury resulted in a verdict for the plaintiff; but thereafter the court granted defendant's motion to set aside the verdict, as well as a motion for a directed verdict which it had reserved for further consideration. In so doing the court held both that the proof of loss was insufficient and that the verdict was against the weight of the evidence. D.C.S.D.N.Y., 57 F.Supp. 821. From the resulting judgment against the plaintiff on the merits, she appeals.

From the evidence adduced at the trial the following facts appeared: On the morning of September 11, 1941, the decedent was driving an automobile along Route 9, near Newark, N. J. While so driving, his car, without involving any other motor vehicle, veered off to the side of the road and on its shoulder, ran along the grassy part of the shoulder, started to slow down, then picked up a little speed, hit a highway sign, and finally crashed into a Public Service pole. He was removed from the car while still alive; but in less than five minutes he was dead.

The decedent was about forty-five years old at the time of his death. During his married life he had not suffered from other than minor ailments. For a period of six years prior to his death he was afflicted with gout in his great toe, which had grown progressively worse. In outward appearance he was a normal individual, somewhat overweight, but apparently actively engaged in the pursuit of his occupation as a traveling salesman, operating an automobile perhaps 50,000 miles a year. As far as it is known he had no bad habits. He bowled, played golf and ping pong, swam, and fished. He indulged in many of the physical activities which are normal to persons of his age. On three occasions prior to the occurrence in question, while driving an automobile, he had been attacked by what is claimed was the gout and he either lost control of the car and went off the road or had relinquished its further operation to his wife or son.

In May, 1941, he was involved in an accident and was treated by Dr. Kearney, who in an examination at that time and again one and two months later found no evidence of heart disease or of circulatory disease.¹ At the time of his death he was examined by Dr. Linke, who came along the highway and saw him before he died. Dr. Linke reports that he was pale, cold, and clammy, that his breathing was heavy and gradually petered out, and that he never regained consciousness. Dr. Linke was of the opinion that death was due to a coronary disease.

About three hours after his death an autopsy was performed by Dr. Martland, Chief Medical Examiner of Essex County. The autopsy revealed a fracture of the sixth rib in midaxillary line with a small amount of hemorrhage. The gross examination reported: "Right coronary opens in normal position and there is a fresh thrombus about 5 mms. in size just below its origin."

The microscopic examination revealed: "Sections through right coronary show marked, old atheroma of vessel wall. The lumen is almost entirely filled with a fresh thrombus which is firmly attached to broken intima, showing subintimal hemorrhage. The clot is well organized showing a network of fibrin in the meshes of which are entangled leucocytes and around which are red blood cells."

Dr. Martland's conclusion as stated in his report was: "This case is one of sudden death due to a recent thrombosis of the right coronary artery. * * * I am, therefore, of the opinion that the cause of death is due entirely to natural causes, and that the heart attack caused the accident. The injuries are not sufficient to explain death."

Plaintiff presented the testimony of two medical experts. Each, in answer to a hypothetical question as to the cause of death, categorically denied it was due to a coronary occlusion, and strongly insisted it resulted from shock caused by the fracture of the rib. Each asserted death was caused solely and exclusively by external causes, namely the described accident. Neither witness had ever seen the deceased. The hypothetical question embodied the facts as above set forth, but did not contain the reported opinions of Dr. Linke and Dr. Martland as to the cause of death.

Thereafter Dr. Martland testified that the naked eye examination revealed the lumen to be entirely filled with a fresh thrombus. The apparent discrepancy of this statement with his earlier report that the lumen was "almost" entirely filled and the contention that in view of the hundreds of autopsies he makes his report is the more authentic testimony, he answered by saying that when the artery was opened to examine the clot at the time of the autopsy some of the clot broke off and fell out, a circumstance which recalled this case particularly to his mind.

On setting aside the verdict as against the weight of the evidence, the court granted the motion for a new trial. Its final judgment on the merits was therefore because of the insufficiency of the proof of loss. In so doing the court relied on the authority of Wachtel v. Equitable Life Assur. Soc. of United States, 266 N.Y. 345, 194 N.E. 850. The facts relating to the submission of proof of loss are these: The policy required written notice of death by accident within twenty days, and affirmative proof of loss within ninety days, after date of death. A week after the accident plaintiff's attorney advised defendant of the insured's death as a result of accident. Proof of loss, made out on defendant's own forms and signed and sworn to by plaintiff, was returned October 1, 1941. On this she had filled out the "Date and hour of accident" and where it occurred; and then in response to the direction, "State how it happened," she wrote: "Deceased was driving his car when it became out of control and crashed into a pole causing the death of the deceased. Deceased's car was severly sic damaged."

A note to the form directed that the death certificate be attached. This she did. The certificate, however, was signed by Dr. Martland, who had stated as the immediate cause of death: "Sudden death while driving automobile; coronary thrombosis; coronary arteriosclerosis."

The court, believing the Wachtel case compelled its conclusion, held that the proof of loss was insufficient because it showed death to have resulted from coronary thrombosis, rather than solely and exclusively by accidental means. Plaintiff assigns both rulings as error.

1. The requirement of a proof of loss is to be liberally construed in favor of the insured. Glazer v. Home Ins. Co., 190 N.Y. 6, 82 N.E. 727. Here the proof affirmatively stated that death resulted when deceased's car got "out of control and crashed into a pole." The sworn statement, on a form furnished by the defendant and in answer to questions there set forth, gave details as to time and place of accident. Certainly this in itself would meet the requirements of furnishing "such reasonable evidence as the party can command at the time, to give assurance that the event has happened, upon which the liability of the insurers depends," and of providing information by which "the insurer may be able intelligently to form some estimate of his rights and liabilities before he is obliged to pay." O'Reilly v. Guardian Mut. Life Ins. Co. of N. Y., 60 N.Y. 169, 173, 19 Am.Rep. 151. Such proof has never been construed as that required in a lawsuit in order that a beneficiary should recover. See Bilsky v. Mutual Benefit Health & Accident Ass'n, City Ct., 49 N.Y.S.2d 149, affirmed 182 Misc. 122, 49 N.Y.S.2d 848, and 268 App.Div. 973, 52 N.Y.S.2d 576; Dana v. Northwestern Mut. Life Ins. Co., 152 Misc. 383, 272 N.Y.S. 296, affirmed 236 App.Div. 836, 259 N.Y.S. 1011; Berkowitz v. New York Life Ins. Co., 256 App.Div. 324, 10 N.Y.S.2d 106; Levine v. New York Life Ins. Co., 155 Misc. 806, 280 N.Y.S. 468, affirmed 246 App.Div. 703, 285 N.Y.S. 532. Moreover, the information supplied fully meets the proof required by the policy itself, viz., "written proof covering the occurrence, surrounding circumstances, character and extent both of the loss for which claim is made and of the accident causing such loss."

Defendant's reliance is, of course, on the attached death certificate as showing death due to coronary thrombosis and, especially since there was no entry in that section of the certificate which called for a statement where death was due to external causes, that it had not resulted from accident. Defendant's contention is: (1) Timely submission of proof of death by accident is a condition precedent to its liability; (2) the proof submitted shows death was caused by disease, not accident; (3) hence there has not been a proper proof of loss and plaintiff cannot maintain this action. This syllogism is no stronger than its minor premise. But surely plaintiff's sworn statement emphatically attributed death to accident. The certificate was furnished in accordance with the requirement of defe...