Commercial Union Assurance Company v. Berry
| Citation | 359 F.2d 510 |
| Decision Date | 28 April 1966 |
| Docket Number | No. 18164.,18164. |
| Parties | COMMERCIAL UNION ASSURANCE COMPANY, Ltd., Appellant, v. Frances L. BERRY, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Reed O. Gentry, of Rogers, Field & Gentry, Kansas City, Mo., for appellant.
John J. Alder, Kansas City, Mo., Herman M. Swafford, and R. I. Kidd, Kansas City, Mo., for appellee.
Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.
Defendant-appellant, Commercial Union Assurance Company, Ltd., a corporation, issued a group accident policy for the benefit of subscribing employees of Consolidated Underwriters of Kansas City, Missouri. Charles M. Berry became an assured under such policy. Frances L. Berry, Mr. Berry's wife and plaintiff-appellee herein, was named as the beneficiary. The policy provided for $30,000 in accidental death benefits. On February 25, 1962, in Clay County, Missouri, Mr. Berry died under circumstances which allegedly justified a claim for accidental death under the policy. This case was originally commenced in the Circuit Court of Jackson County, Missouri, but because of diversity of citizenship and the $30,000 amount involved, it was removed to the United States District Court for the Western District of Missouri. The case was tried to a jury, which returned a verdict in favor of the appellee for the face amount of the policy. In this appeal from the final judgment, it is claimed that the trial court erred in failing to sustain appellant's motion for a directed verdict and its motion for judgment n.o.v. Appellant alleges that appellee failed to make a submissible issue for the jury on her claim that Mr. Berry's death resulted from an accident within the terms of the policy. In other words, appellant challenges the sufficiency of the evidence to justify the jury's verdict. We affirm.
The evidence established that Mr. Berry, a fire insurance underwriter, was slight in build and weight, being five feet three and three-quarters inches in height and weighing 132 pounds. He was 52 years of age at the time of his death. So far as his wife and friends knew, he had had no previous difficulty with his heart and had not been under the care of a doctor for the ten years preceding his death. He worked regularly from 8:15 a. m. to 5:00 p. m. five days a week. On week-ends he operated a "ham" radio at home. He used to play baseball until the baseball field was moved. He took up bowling in the 1960-61 season and thereafter bowled once a week with his wife on Sunday nights.
On Sunday, February 25, 1962, Mr. Berry spent a normal day. He worked with his "ham" radio, took a nap, ate a light dinner at home and had dessert at a friend's house. Appellee and her husband arrived at the bowling center, the North Kansas City Bowl, about 7:00 p.m. that night. A freezing rain was falling. They walked about 100 feet from their parking space in the bowling center parking lot to the bowling establishment. Mr. Berry bowled three games in the heated building.
When the bowling was over at 10:15 p.m., the Berrys returned to their car. The parking lot surface was very slick from the freezing conditions. Mr. Berry went around to the driver's side of the car and appellee went to the passenger's side. He got into the car and started the motor. When appellee tried to open the door on her side, her hand slipped off the door handle, which was covered with ice.1 She then put on a glove and was able to get the door open. By this time Mr. Berry had gotten out of the car and was scraping ice from the windshield with a red plastic scraper. Simultaneously he was talking to appellee about her bowling. At the time appellee entered the car, the driver's door on the left side of the car was closed but the appellee could see her husband's left hand as he scraped the windshield.
When Mr. Berry grabbed the door handle, apparently with his right hand, to re-enter the car, appellee heard a click which indicated that the door was about to open. Appellee testified that ordinarily a second click would follow the first and then the door would open. On this occasion, however, appellee heard only the single click. Her husband then seemed to disappear. She heard no moan or sound of any kind. After waiting for awhile, she called to her husband, thinking that he had dropped his glove. She then emerged from the car and found her husband lying on his back with his arms spread out. His feet, that portion of his anatomy lying nearest the car, were about ten feet away. His hat was two or three feet further behind him. Appellee thought her husband had hurt his back. His face was drawn in pain. She started to lift him, at which point she felt a ridge of ice under his neck. He turned away from her and said, "Oh." She put his hat under his head and kept talking to him.
Appellee stated to an officer, who arrived on the scene, that, "My husband fell." The officer called for a rescue squad. Mr. Berry was still breathing at the time he was placed in an ambulance but he was pronounced dead at the North Kansas City Hospital.
Dr. O. S. Pate, physician and coroner of Clay County, Missouri, testified that he examined Mr. Berry externally at the hospital and found a small recent bruise of about one and one-half inches in diameter on Mr. Berry's back between the shoulder blades. This was "a result of trauma". It was "the kind of bruise that could come from a fall * * *". He found no other marks excepting in a small area around the nose, which could have come from a resuscitator. He directed Dr. William McPhee to perform an autopsy. So far as he knew, the general condition of Mr. Berry's health was good.
Dr. McPhee testified as follows as to his findings:
A long, detailed hypothetical question, encompassing appellee's testimony as to the events leading to the death of her husband and Dr. McPhee's findings from the autopsy, was propounded, in answer to which Dr. McPhee testified that he could say with reasonable medical certainty that Mr. Berry's death had a direct relationship to the hypothetical facts as given. The questioning of Dr. McPhee proceeded as follows:
After stating that the mucus in the low bronchus comes from some unusual outside force, Dr. McPhee testified further:
On cross-examination, Dr. McPhee was asked:
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