Brown v. Maryland Casualty Co.

• Decision Date: 07 January 1932
• Docket Number: No. 9168.,9168.
• Citation: 55 F.2d 159
• Parties: BROWN v. MARYLAND CASUALTY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

55 F.2d 159 (1932)

BROWN v. MARYLAND CASUALTY CO.

No. 9168.

Circuit Court of Appeals, Eighth Circuit.

January 7, 1932.

John S. Leahy, of St. Louis, Mo. (William O'Herin, Lyon Anderson, and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for appellant.

William H. Allen, of St. Louis, Mo. (W. E. Moser and John S. Marsalek, both of St. Louis, Mo., on the brief), for appellee.

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

GARDNER, Circuit Judge.

This was an action by appellant on a policy issued by the appellee, whereby the latter promised to pay to the former a stated sum for the loss of the life of Harold L. Brown, her husband, "resulting from bodily injuries effected independently and exclusively of all other causes through external, violent and accidental means." The parties will be referred to as they appeared in the lower court.

The policy contained the further limitation: "This policy shall not cover accident, injury, disability, death or other loss caused or contributed to directly or indirectly, wholly or partly, by bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which shall occur simultaneously with and through an accidental cut or wound effected as hereinbefore provided) or by any other kind of disease."

Plaintiff in her petition alleged that on the 23d day of July, 1926, while the policy was in force, the insured, while sitting on his bed, was unexpectedly, suddenly, violently, and forcibly thrown back on the bed by his son, and that as a result his intestines were caused to protrude through his umbilical opening, and thereafter his intestines became strangulated and resulted in his death. Plaintiff testified that on the date of the accident her husband came home early and remained at home all afternoon; that after dinner in the evening, while sitting on the edge of the bed, having just finished a telephone conversation, his son suggested that they go out and take a walk. The insured not having heard the son's suggestion, the son repeated the remark a number of times, and, not receiving any response from his father, he gave him a shove back; that the son put his hands out and shook his father, giving him a hard shove to attract his attention, and the insured lost his balance. The insured was seated on the edge of the bed, and, when the son gave him this hard shove, he fell completely back on the bed. The insured lifted himself up with difficulty and remarked, "I think you have hurt me. You should not be so rough." The insured then walked up and down the room, holding his stomach and seeming very uneasy; that he, at plaintiff's suggestion, lay down and apparently went to sleep, but later got up and complained that, "This thing hurts an awful lot." Plaintiff put her hand on insured's stomach, and found a great big lump coming out. A physician was sent for who manipulated this protrusion, but did not succeed in doing anything much with it. A surgeon was then called, who ordered the insured taken to a hospital at once. This was about 4:30 o'clock the morning following the accident. The insured was then taken to a hospital and operated on almost immediately, and within three days thereafter died, having remained in the hospital in the meantime. When insured returned from the operating room in the hospital, there were bandages around his stomach. She also testified that she had not at any time prior to this occasion felt or noticed this lump that she found there that night of the accident; that she had never made an examination of her husband's abdomen before this particular evening, and, not having so done, she did not know whether the lump was there before that evening or not.

The son testified with reference to the accident that "I gave him quite a violent shove and he fell back on the bed and with difficulty he raised himself up"; that his father put his hand on his stomach and complained that the witness had hurt him and had given him quite a jolt.

There was testimony to the effect that the insured's eyesight was seriously impaired, and that he suffered frequent attacks of excruciating...