Business Men's Acc. Ass'n of America v. Schiefelbusch

• Decision Date: 02 December 1919
• Docket Number: 5423.
• Citation: 262 F. 354
• Parties: BUSINESS MEN'S ACC. ASS'N OF AMERICA v. SCHIEFELBUSCH. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

262 F. 354

BUSINESS MEN'S ACC. ASS'N OF AMERICA v. SCHIEFELBUSCH. ^[1]

No. 5423.

United States Court of Appeals, Eighth Circuit.

December 2, 1919

Solon T. Gilmore, of Kansas City, Mo. (C. G. Horner, of Guthrie Okl., on the brief), for plaintiff in error.

A. G C. Bierer, of Guthrie, Okl. (Frank Dale and N. E. McNeill, of Oklahoma City, Okl., on the brief), for defendant in error.

Before CARLAND and STONE, Circuit Judges, and ELLIOTT, District Judge.

CARLAND Circuit Judge.

This is an action by defendant in error, hereafter called plaintiff to recover from plaintiff in error, hereafter called defendant, a death loss on an accident policy issued to her husband, Mathis Schiefelbusch. The plaintiff recovered a verdict below, and the defendant brings the case here assigning error. The policy contained the following provisions:

'Hereby insure him against loss resulting from bodily injuries, effected directly, independently, and exclusively of all other causes, contributing or proximate, through external, violent, and accidental means. ' ' * * * For loss of life, $5,000.00' 'Blood poisoning resulting directly from bodily injuries shall be deemed to be included in the said term 'bodily injuries."

The plaintiff stated her cause of action as follows:

'That the said Mathis Schiefelbusch being a man that is termed and designated as bald-headed would frequently during the summer time and in hot weather in wiping and rubbing the perspiration from the top of his head would do so with a towel, and that upon the 17th or 18th day of July, 1916, the exact date being unknown to said plaintiff, the said Mathis Schiefelbusch did violently and by external means in attempting to rub the perspiration from the crown of his head used a towel which had been used in his dental work, and by rubbing over his head did cause a slight abrasion of the skin and after receiving said injury and abrasion of the skin that thereafter and thereby an infection set in and that by reason of said infection and as a direct result from the violent rubbing of said head, which caused an abrasion of the skin, and as a direct result blood poisoning resulted and of said injury said Mathis Schiefelbusch died on or about the 24th day of July, 1916, which said death was caused and resulted directly from the external, violent and accidental injury received from the rubbing of the towel or cloth over the head of said Mathis Schiefelbusch thereby causing a slight abrasion of the skin.'

It was admitted at the trial that the deceased died from blood poisoning. Counsel for defendant submit two propositions for reversal. They are as follows:

(a) 'There can be no recovery under a policy insuring against the result of an injury effected through accidental means, where such injury, although totally unexpected, fortuitous, and undesigned, and in that sense accidental, is occasioned by voluntary act on the part of the insured, executed in an expected and ordinary way, since such injury, though accidental, is not the result of accidental means.'

(b) 'The theory that Dr. Schiefelbusch's death resulted from the causes named in the petition is based upon a chain of presumptions or inferences, and violative of the rule of law that, whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves be presumed.'

The defendant introduced no testimony. The evidence on the part of the plaintiff shows the following facts: The deceased was a dentist, and practiced his profession at Yale, Okl. He was baldheaded, and perspired profusely on his head and neck during hot weather. He had a habit or practice of using, to the extent of a dozen times a day or more, the towels used by him in the practice of his profession, to wipe perspiration from the top of his head and neck. He used these towels for this purpose when they were dirty, and had blood and pus upon them, coming from the mouths of patients. He wiped his hands upon these towels after having his hands in the mouths of patients. The towels often had upon them hardened particles of plaster of paris. The practice of using these towels was so common that Dr. Bacon had talked to the deceased about it.

The history of the illness of deceased was substantially as follows: On Wednesday, July 21, 1916, deceased complained of pain at the back of his neck and the top of his head. There were circumscribed red spots upon the top of the head and upon the neck. They were inflamed and swollen. Deceased suffered with pain in the locality mentioned on Thursday and Friday. Saturday morning he had a chill, and went to bed exhausted. He continually grew worse, became delirious on Sunday afternoon, and...