Cone v. Beneficial Standard Life Insurance Company

• Decision Date: 09 January 1968
• Docket Number: No. 18823.,18823.
• Citation: 388 F.2d 456
• Parties: Lucille E. CONE, Appellant, v. BENEFICIAL STANDARD LIFE INSURANCE COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

388 F.2d 456 (1968)

Lucille E. CONE, Appellant, v. BENEFICIAL STANDARD LIFE INSURANCE COMPANY, a Corporation, Appellee.

No. 18823.

United States Court of Appeals Eighth Circuit.

January 9, 1968.

COPYRIGHT MATERIAL OMITTED

Walter A. Raymond, of Raymond, West & Strader, Kansas City, Mo., for appellant; Raymond, West & Strader, and William M. Day, Kansas City, Mo., on the brief.

R. Lawrence Ward, of Shughart, Thomson & Kilroy, Kansas City, Mo., for appellee; Harry P. Thomson, Jr. and Shughart, Thomson & Kilroy and Elmer T. Carl, Kansas City, Mo., on the brief.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

The appellant, widow of the insured, brought suit on an accident insurance policy as the named assured for death benefits in the amount of $13,200.00. The jury found for the appellee-insurance company generally, and answered three special interrogatories.¹

Appellant urges error (1) in the court's instruction regarding proximate cause, (2) in the admission into evidence of certain expert testimony, (3) in the failure of the court to enter judgment for appellant on the answers to the special interrogatories, and (4) in the court's failure to give two of appellant's requested instructions. We affirm the judgment below.

Elmer W. Cone was 65 years old at the time of his death on July 8, 1964. On that date, Mr. Cone was driving his car at a speed of 20 to 25 miles per hour southward on a six-lane divided parkway in Kansas City. According to an eyewitness, Mr. Cone "bent over" the wheel; the evidence showed that his car then slowed down, jumped the left curb onto the medial strip, traveled 40 feet, hit some bushes in the medial strip, then angled across the north-bound lanes, across the yard and parking lot of a church and came into "violent collision" with the church building. From where the car first veered left, it traveled about 670 feet before the collision.

The decedent's history of cardiovascular arteriosclerotic problems included a stroke in 1960, visual disturbances in 1962 and a syncopal attack (fainting spell) in 1963. He was told by his family physician not to drive his car in 1962. However, as of 1964 he was again driving his car without mishap. Doctor Slentz indicated Mr. Cone had not asked permission to drive his car and stated "in my opinion, a man in his condition should not be driving a car."

The deputy coroner attributed his death to trauma and listed on the death certificate:

"Shock and hemorrhage resulting from crushing injuries of the chest, ruptured liver and massive subdural hemorrhage."

A pathologist, called to testify for the insurance company, stated that the decedent was "most likely unconscious" at the time of the collision. Another doctor felt that a "black out or another Stokes-Adams attack * * * may have started the thing." The coroner testified that the decedent hemorrhaged at least a quart of blood into the cavities of the body. This indicated to him Cone was still alive at the time of the collision. The defense expert indicated that this bleeding could have occurred after death.

It is contended that the court's instructions placed a greater burden on the appellant than legally required. The court charged that appellant had the burden to prove that the accident was the "sole and proximate cause" or the "proximate and sole cause." The language of the policy controls. The policy recites that the "injury" must be caused "by an accident * * * resulting directly and independently of all other causes."

Under Missouri law this policy language is merely descriptive of the requirement of "proximate cause"; the word "sole" is redundant and unnecessary to the charge. See Propst v. Capital Mutual Assoc., 233 Mo.App. 612, 124 S.W.2d 515, 522; Brown v. Metropolitan Life Ins. Co., 327 S.W.2d 252 (Mo.Sup.Ct. 1959). Present in the court's charge is the ambiguity that the accident must be a "sole" cause, in addition to the "proximate cause." The two terms, when used with the conjunctive "and," might well impart an improper meaning to the instruction as distinguished from the meaning when the conjunction is omitted, as in "sole proximate cause." It has long been settled under Missouri law that a remote cause may exist without defeating recovery, and that an insured need not prove the accident to be the "sole" cause but only to be the "proximate" cause. See Fetter v. Fidelity & Casualty Co. of N.Y., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459.

However, this apparent ambiguity cannot avail appellant here. Appellant not only failed to object to this phase of the court's instruction, but was specifically asked by the court concerning these instructions. Appellant replied to the court that he had "no objection."² Federal Civil Procedural Rule 51 cannot be circumvented under the guise of "plain error" in these circumstances. This rule is designed to permit timely correction of error in order to avoid new trials. It is not too great a burden on counsel to point out to the court specific objections. Nevertheless, there can be no prejudice to appellant here. The answer to the third interrogatory clearly demonstrates that the jury did not deny recovery to appellant because of the existence of a "remote" cause. It found the disease to be a "proximate cause" of the death. See Bass v. Dehner, 103 F.2d 28, 34 (10 Cir. 1939), in which it is stated:

"Where special findings by the jury show that plaintiff\'s intestate was not injured by an instruction, error therein is without prejudice."

Next, appellant attacks the admissibility of opinion testimony by an expert witness that the insured was "unconscious" before he collided with the chapel wall. Mitigating the effect of this answer, however, is the finding by the jury that the insured did not die of a heart attack. As will be discussed, to determine this the court submitted the first interrogatory. However, even more significant is the fact that the hypothetical question proffered was seeking more than a layman's observation of the decedent's appearance. The doctor's answer was based upon his professional opinion under hypothetical medical facts and as such relevancy and competency of both the question and answer were well within the governing discretion of the trial court.

Appellant also urges error in the trial court's refusal to enter judgment for appellant by reason of the answers to the special interrogatories. Appellant premises her position on the answer to interrogatory (a), that the decedent died as a "result" of the accidental collision. Appellant argues that this answer is conclusive to the merits of the lawsuit and that we should direct the district court to enter judgment against the insurance company. We disagree.

First we observe the question is improperly preserved by appellant's post trial motion filed some eight and one-half months after judgment was entered. Appellant's attempt to rely upon Federal Civil Procedural Rule 60(b) is totally misplaced. However, appellant did preserve assignment of error as to the alleged inconsistency with the general verdict in his motion for new trial. If the verdict is perverse because of inconsistency with special findings a new trial may be ordered. Fed.R.Civ.P. 49(b); see Wayne v. New York Life Ins. Co., 132 F.2d 28 (8 Cir. 1942); Welch v. Bauer, 186 F.2d 1002 (5 Cir. 1951).

Although not without some difficulty, we conclude there is no inconsistency to the verdict and special findings. The answer to (a) is not definitive, or even meaningful under definitions of proximate or remote cause, or necessarily within the language of the policy itself. The jury simply found that the decedent died as a "result" of the auto accident. Standing alone this answer is simply a "but-for" finding of causation without the attached legal significance appellant urges. As Professor Prosser says:

"The event without millions of causes is simply inconceivable; and causation alone can provide no clue of any kind to singling out those which are to be held legally responsible." Prosser, Torts 243 (3d ed. 1964).

The answer to the third interrogatory leaves no doubt of the jury's meaning with regard to the first. The jury found, according to interrogatory (c), that a non-accidental cause was a proximate cause of the death. Therefore, we conclude interrogatory (a) assumes legal significance and import only when considered with the answers to the other interrogatories and the general verdict. The court indicated that the reason for submitting interrogatory (a) was to serve merely as a determinant of whether the deceased had expired before he collided with the wall.

Based upon this answer that the death was the result of the collision, appellant urges that the findings in interrogatories (b) and (c) and general verdict are either irrelevant or erroneous. Appellant urges that this "inconsistent" result is directly related to the failure of the trial court to instruct upon appellant's theory of her case. Appellant particularly relies upon the trial court's refusal to give her requested instructions "A" and "B".

Appellant's Request "A" reads:

"You are instructed that if you find that the insured Elmer W. Cone on the occasion in question was suddenly stricken with a fainting spell or lost consciousness from an unknown cause which was unforeseen and not reasonably to be anticipated which produced in him such physical or mental incapacity as to render him incapable of controlling his automobile and as a direct result thereof said automobile angled to the left out of control across the parking and across a yard and into violent collision with a stone edifice thereby causing his injuries and death then you may find his death resulted from `bodily injuries caused by accident\' within the meaning of the policy."

Appellant's Request "B" reads:

"The court instructs the jury that in determining whether the insured, Elmer W. Cone, received bodily injuries in the collision of his automobile with a stone church

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