Equitable Life Assurance Society of United States v. Fry

• Decision Date: 28 December 1967
• Docket Number: No. 24290.,24290.
• Parties: EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES et al., Appellants, v. Henry Lee FRY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

386 F.2d 239 (1967)

EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES et al., Appellants, v. Henry Lee FRY et al., Appellees.

No. 24290.

United States Court of Appeals Fifth Circuit.

November 28, 1967.

Rehearing Denied December 28, 1967.

Ronald L. Reid, Atlanta, Ga., Alston, Miller & Gaines, Atlanta, Ga., of counsel, for appellants Equitable Life Assur. Soc. of United States, and Lumbermens Mut. Casualty Co.

Sam F. Lowe, Jr., Atlanta, Ga., Smith, Cohen, Ringel, Kohler, Martin & Lowe, Atlanta, Ga., of counsel, for appellant Metropolitan Life Ins. Co.

Nolan B. Harmon, G. William Thackston, Jr., Archer D. Smith, III, Atlanta, Ga., Harmon & Thackston, Atlanta, Ga., for appellees Henry Lee Fry and Citizens and Southern Nat. Bank, as coexecutors under will of Elmer Lee Fry, deceased.

Buckner F. Melton, Macon, Ga., Melton, McKenna & House, Macon, Ga., of counsel, for Mary Elizabeth Fry, Martha Regina Fry and David Lee Fry, by and through Mrs. Anne Fry Malone, as next friend, plaintiffs-intervenors, appellees.

Before TUTTLE, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

In this diversity matter four separate actions alleging breach of contracts of insurance were consolidated for trial before a jury and resulted in a verdict for plaintiffs. Suits were brought by the co-executors of the estate of the deceased insured, Dr. Elmer Lee Fry, to enforce payment of accidental death benefits alleged to be due under the provisions of insurance policies issued to the deceased, plus statutory penalties and attorneys' fees. Deceased's estate is the beneficiary under the policies. Defendants-appellants are the insurers of the deceased under either accidental death policies or life insurance policies with double indemnity provisions in the event of accidental death.¹ Motions for directed verdicts were denied. Judgments were then rendered in the amounts of the accidental death benefits provided for in the policies.² Defendant insurance companies have appealed from the judgments of the district court entered upon the jury's verdict, and from the order denying motions for judgments notwithstanding the verdict and alternatively for a new trial.

The question for decision (as stated in appellants' specifications of errors) is whether the evidence was sufficient to justify the denial by the lower court of defendants' motions for directed verdicts and for judgments notwithstanding the verdicts.

Appellees maintain in their brief that "the primary cause of Dr. Fry's death was a blow to his head caused by a fall resulting in loss of consciousness and, in the position in which the body found itself, the airway was blocked and death ensued from asphyxia" and the accidental means which directly brought death was thus the position of Dr. Fry's body.

Appellants contend that there was no evidence from which the jury could have lawfully found that the deceased died an accidental death within the meaning of the accidental death provisions of the policies of insurance; that in arriving at a verdict the jury necessarily indulged in speculation and pyramiding of inferences as there was no proof of an accidental fall or that asphyxia was accidental; and that the entirely circumstantial evidence proposed to support appellees' theory gives equal or greater support to collapse brought about by a diseased liver.

On October 23, 1961, at approximately 9:00 a. m., Dr. Elmer Lee Fry, a forty-year-old anesthesiologist, was found dead in his apartment in Atlanta, Georgia. He was separated from his wife and living alone at the time. His body, clad in pajamas, was discovered by members of the Atlanta Police Department who had responded to a call made by Dr. Lester Rumble, Jr., an associate, requesting that a check of the apartment be made because of the unexplained absence of Dr. Fry from St. Joseph's Hospital where he was scheduled for duty that day following a two-week vacation. The police officers found the door of the apartment locked, but by use of a passkey and removal of a screw of the inside safety chain, they were able to enter. Dr. Fry's body was lying in a prone position on the carpeted floor in the doorway between the living room and bedroom. His face was turned slightly to the right. There was a discoloration on his left cheek. The oral and nasal cavities contained small amounts of dark brown mucinous material as did the carpet beneath his head. The carpet was ruffled beneath his neck and shoulders. There was no evidence of external violence, homicide or suicide. Shortly thereafter, Dr. Rumble arrived at the apartment and pronounced Dr. Fry dead. Dr. Rumble, alone, noticed a mark on decedent's right temple. Photographs were taken by the police photographer of the body in the position in which it was discovered and after it was turned over. The body was removed to the Fulton County Morgue where an autopsy was made by Dr. Tom Dillon, Fulton County Medical Examiner.

Parts of the body were sent to the Georgia State Crime Laboratory for examination and report, resulting in complete negative findings of the presence of heavy metals, organic poisons, including volatiles, alcohol, cyanide, barbiturates and narcotics.

A number of medical experts testified for both plaintiffs and defendants. Dr. Rumble, as anesthesiologist, and plaintiff witness, testified that he had known Dr. Fry for approximately twenty years and for three years on a daily basis. When asked whether Dr. Fry had ever missed any time from work because of hangover or intoxication, the witness replied that Dr. Fry was not absent from duty at any time nor did he ever leave early because of illness or any other cause. He characterized Dr. Fry's drinking habits as merely social. He observed that the feet of decedent were hyperextended, tending to make a straight line with his legs. His arms were under his body, which Dr. Rumble considered an unusual position. It was his impression when looking at the body that the discoloration on Dr. Fry's left cheek was bloody mucous. He found as significant a linear mark on the right temple area around the eyebrow, which appeared to be a bruise. He could not tell when or in what manner this mark had been made. The position of the teeth and lower lip indicated pressure exerted from a fall. It was Dr. Rumble's opinion that decedent "very definitely" died of asphyxia or suffocation. He said that the most common form of airway obstruction in an unconscious person is the falling back of the tongue against the posterial wall of the throat. Whenever it is necessary to anesthetize a patient for surgery to be performed in a prone position, a tube is put into the windpipe of the patient so that there is no possibility of airway obstruction. Dr. Rumble concluded that the position in which decedent's body was found "leaves no question about the probability of airway obstruction, if not the certainty, and he was dead, and nobody yet has turned up any other reason why he should have died at that particular point of time in that particular position. So that knowing what asphyxia can do and having, unfortunately, witnessed its effects on too many occasions, this just presents to me a clear cut picture of asphyxial death." The position of decedent's hands and feet was typical of lack of oxygen and convulsion. Dr. Rumble said that the mark on decedent's right temple was an indication of a blow which could have been caused by a fall and the blow could have produced unconsciousness. The position of decedent's body "with the arms underneath, with its face crammed down into the carpet so that it would have been terrifically difficult, if not impossible, for him to breathe, and with the very obvious change in color and with the classic signs of convulsions having occurred at some point" convinced Dr. Rumble that this was an asphyxial death. The witness said that trauma very definitely can cause unconsciousness with no demonstrable derangement in the brain and that the only way decedent's unconsciousness could be explained was that it was caused by trauma, in the face of the negative toxicological findings in the autopsy report.

Dr. John Edward Steinhaus, Chief of the Department of Anesthesiology at Grady Memorial Hospital, Atlanta, Georgia, testified for plaintiffs that he knew decedent professionally. From an examination of the photographs in evidence, it was his opinion that the discoloration on the left cheek of the decedent was a bruise which he believed was sufficient to cause possible loss of consciousness. After Dr. Fry's death, Dr. Steinhaus examined the discolorations on the rug in the apartment and it was his opinion they were caused by blood or some combination of body fluids and blood. Dr. Steinhaus testified that in his opinion death was caused by asphyxia resulting from an obstructed airway and the position in which decedent's body was found; that the position of the body indicated a fall. The discoloration on the left check could have been caused by trauma.

Dr. John Adriani, head of the Department of Anesthesia at Charity Hospital, New Orleans, Louisiana, another plaintiff witness, testified that it was his opinion that decedent had fallen, and considering the negative findings of the autopsy and the toxicological examinations, he "would suspect that this was an asphyxial death"; that decedent "fell, had no control of himself, the way his arm is placed under his chest, and was unable to control himself just as a patient would be if he were drugged or unconscious from other cause, and that in that position, in the head down position like that, obstruction occurs very easily and asphyxia could very well have caused the death of this individual, with the negative autopsy findings." He was of the opinion that a blow or an external force caused the bruise on decedent's left cheek. However, the bruise was not necessarily connected with the body being on the floor. It is possible for a person who has died of asphyxia to have a clear...