O'BRIEN v. Massachusetts Bonding & Insurance Co.

• Decision Date: 23 February 1933
• Docket Number: No. 9153.,9153.
• Citation: 64 F.2d 33
• Parties: O'BRIEN v. MASSACHUSETTS BONDING & INSURANCE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

64 F.2d 33 (1933)

O'BRIEN v. MASSACHUSETTS BONDING & INSURANCE CO.

No. 9153.

Circuit Court of Appeals, Eighth Circuit.

February 23, 1933.

Randolph Laughlin, of St. Louis, Mo., for appellant.

Robert A. Holland, Jr., of St. Louis, Mo. (Forrest C. Donnell, Jacob M. Lashly, and Holland, Lashly & Donnell, all of St. Louis, Mo., on the brief), for appellee.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Patrick J. O'Brien had a policy of accident insurance in the appellee company insuring him — and his beneficiary, appellant herein, in case of accidental death — against "the effects resulting directly and exclusively of all other causes from bodily injury sustained solely through external, violent and accidental means (excluding suicide, sane or insane)." The principal sum, in case of death, was $5,000.

March 19, 1925, insured, an inspector of transportation for the Wabash Railroad, dined with the vice president and general manager of the railroad in the private car of the latter at Moberly, Mo. Two or three hours later insured became ill, complaining of pain in his stomach. He returned next day to his home in St. Louis, where he became so ill that a physician was summoned. Dr. Kane, physician in charge, testified that he found him vomiting, that he had abdominal distention, and was complaining of intense pain and cramps. The case was diagnosed as acute gastrointestinal infection. Treatment at home continued until April 11, 1925, when he was removed to a hospital; there an operation was performed, and a very large liver abscess was found containing a large amount of pus. The postoperative diagnosis was abscess of the liver. A second operation was performed April 22, 1925, in which an abscess cavity was found between the fascia and the peritoneum. It contained colon bacillus pus. Dr. Kane says: "After the second operation Mr. O'Brien continued the course of an individual who had a general systemic infection, a general toxemia." He had, in course, an acute nephritis, an acute inflammation of the kidneys, and septic-miocarditis. As his disease progressed his heart muscle degenerated. He died April 29, 1925. Dr. Kane further testified that:

"The toxins that were developed by the micro-organisms were what was making an attack on all these vital organs. It is not a microbe infection by one particular germ all the time. It is a mixed infection. We get a mixed infection with a streptococcus and staphylococcus and colon bacillus. In this case the one that was demonstrated was the staphylococcus which was found after the original operation. That was found in the smear, the liver pus.

"I know that staphylococcus was the pathogenic organism that could produce these various results that I have described."

Appellant brought suit to recover upon the clause of the accident policy to which reference has been made, alleging, in her third amended petition: "That on the 19th day of March, 1925, said Patrick J. O'Brien ate certain food, believing the same to be pure, nourishing, and wholesome, and without any intention to partake of poison, tainted, or unwholesome food, but said food, unknown to him, was tainted, and contained a deleterious substance or poisonous organism, to-wit, a pathogenic organism technically called staphylococcus bacteria, commonly known as ptomaine, or food poisoning, which was hidden from him, and which, operating upon his system, caused death."

At the close of all the evidence the court, on motion, directed a verdict for appellee. As said by the trial court, the cause of action alleged by the plaintiff was that his death was caused by taking in on food, the food being merely a medium of transportation, and not being within itself inherently poisonous, a pathogenic germ call staphylococcus bacterium. This theory of the case is thus succinctly expressed by counsel for appellant at the conclusion of the trial: "I agree with your Honor, that the evidence in this case does show that this deleterious substance, or organism, was taken in with the food, as a medium of transportation merely, and not as a virtual poison itself, and that raises the cold question of law, whether or not a deleterious substance taken in that way is an accident, within the meaning of the policy. That is the sole question that I would like to present to the higher court."

Dr. Kane, attendant physician and chief medical witness for plaintiff, says:

"Staphylococcus is a form of bacteria. It is one of the most prevalent. If you took a culture from my hands or your hands right now, you would be apt to find staphylococci. If you took a culture of any ordinary food, you would be apt to find staphylococci on the surface of it. If you put your finger in your mouth you might be putting something in there that in all probability has staphylococcus on it, unless you had just scrubbed it.

"These bacteria are found in fish, in milk, in raw vegetables and in butter. * * *

"In the works on poisoned food, a food that merely has staphylococcus on it has never been classified as a poisoned food before it is taken. * * *

"When staphylococci get on food and lodge there, they do not create any poisonous substance in their action on food, not in the dead food. Other bacteria do — Putrefactive bacteria do. * * *

"The scientific portion of the medical profession is attempting to have the word `ptomaine' discarded from medical literature, because recent investigation has proven that there is no such thing. * * *

"These staphylococcus germs can enter the system in other ways than on food, by anything that goes into the mouth, or into the saliva or the secretions."

Dr. Albert E. Taussig, for defendant, testified as follows:

"This bacterium known as staphylococcus is everywhere. It is in the dust. It is always in and on our skins. It is always present in the throat. It is practically everywhere. If you should take some food that had on it some staphylococci bacteria, you would be taking what they call normal food. If a person took some food that had a quantity or staphylococci bacteria on it and ate it, and it went down into his stomach and through his intestines it could do him harm only if there were an open wound somewhere on the way. If you rub...