Feldmann v. CONNECTICUT MUT. LIFE INS. CO., ETC.

• Decision Date: 22 May 1944
• Docket Number: No. 12617.,12617.
• Citation: 142 F.2d 628
• Parties: FELDMANN v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD, CONN.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F.2d 628 (1944)

FELDMANN v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD, CONN.

No. 12617.

Circuit Court of Appeals, Eighth Circuit.

April 4, 1944.

Rehearing Denied May 22, 1944.

John R. Stockham, of St. Louis, Mo. (Ben L. Shifrin, Emil Mayer, Roscoe Anderson, W. R. Gilbert, Taylor, Mayer, Shifrin & Willer, and Anderson, Gilbert, Wolfort, Allen & Bierman, all of St. Louis, Mo., on the brief), for appellant.

Warren M. Humes, of Hartford, Conn., and James C. Jones, Jr., of St. Louis, Mo. (Lon Hocker, Jr., and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., on the brief), for appellee.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The action is one by a beneficiary to recover on the accidental death benefit provision of three life insurance policies. The regular death benefit under each policy had been paid. By the provision involved, the insurer had agreed to pay an additional sum equal to the face amount of each policy, if the insured's death resulted "from bodily injury effected solely through * * * accidental means", excluding, however, death "from self-destruction" or "from poisoning".¹

The insured had died from an overdose of nembutal, known pharmacologically as pentobarbital sodium and ordinarily taken to produce sleep. The insurer contended (1) that the death was not one from accidental means; (2) that it was a death from self-destruction; and (3) that it was a death from poisoning.

The case was tried to a jury, which returned a general verdict for the insurer, but which, by its answers to three special interrogatories submitted at the insurer's request, found (1) that the death was one from accidental means; (2) that it was not a death from self-destruction; but (3) that it was a death from poisoning. The beneficiary has appealed.

The parties agree that all the policies are New York contracts and that the law of New York is controlling in the action. The principal question, therefore, in view of the answers made to the special interrogatories, is whether the jury was correctly and sufficiently advised, by the instructions generally or in connection with the special interrogatories, of the sense in which it was to apply the term poison or poisoning under New York law, so that it was legally able to decide whether the insured died from poisoning.

Without going into the details of the evidence, the general situation should perhaps be stated. For a year or more before his death, the insured had been using nembutal to induce sleep. His purchases and taking were apparently made without medical prescription or direction. He generally took a 1½-grain capsule, but, if this did not prove effective within 15 or 20 minutes, he would repeat the dose. He was suffering from nervousness and a stomach ailment and had given up his active occupation. On the occasion here involved, he had returned from a wrestling match about 1:00 o'clock A.M., and his wife and he had drunk some beer and visited awhile before they retired. During this period, he went to the bathroom twice, and his wife "heard him rattling in the medicine cabinet". He complained that his stomach was bothering him, and just before his wife fell asleep he again went to the bathroom. The wife did not know how many nembutal capsules he had taken on any of these trips, nor did she hear him when he returned the last time to the bedroom. The next thing she knew was when he awakened her and told her that he was cold. She saw that he was ill and called a doctor, but before medical aid arrived he had died.

The autopsy showed that death was due to an overdose of nembutal. The stomach contained a quantity equal to 15 of the sleeping capsules, in addition to that which had been absorbed into his system and caused his death. There was testimony by medical experts for the insurer that from 10 to 30 grains of nembutal ordinarily would have a fatal effect, although it was admitted that the amount would vary with the susceptibility of the individual and with the tolerance which habitual use might develop, and that there had been clinical cases where 75 to 105 grains were known to have been taken and the victim had survived, on antidotal treatment. The medical witnesses further declared that nembutal was a poison, but their concept was a purely scientific one, for they regarded anything which had produced a lethal toxic effect as being poisonous in the particular situation. One witness testified that whiskey and alcohol might thus be classified as poisons.

But scientific concept or definition would not necessarily be determinative of whether nembutal was a poison within the meaning of the exclusion clause of the policies. The New York courts have held that, in determining the meaning of the terms of an insurance contract, the point of view "must not be that of the scientist", but "that of the average man" (Lewis v. Ocean Accident & Guarantee Corp., 224 N.Y. 18, 120 N.E. 56, 57, 7 A.L.R. 1129); that the contract must "be interpreted in the light of the language which we commonly use and understand; in other words, our common speech" (Mansbacher v. Prudential Insurance Co., 273 N.Y. 140, 7 N.E.2d 18, 20, 111 A.L.R. 618); and that a term in a policy should accordingly be given such a meaning "as common thought and common speech would now image and describe it" (Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N. E. 432, 433, 38 A.L.R. 1115). As a matter of legal principle, therefore, the jury was required to determine, not whether the insured's death from nembutal was a death from poisoning by scientific concept and definition, but whether on the facts and circumstances, viewed in the light of common knowledge and experience, his death was one from poisoning within the understanding and use of that term by the average man.

We have pointed out in Aubuchon v. Metropolitan Life Ins. Co., 142 F.2d 20, this date decided, that certain substances, such as arsenic, strychnine, and carbolic acid, are perhaps so universally regarded as poisons in the public mind that they may be declared to be such, within the meaning of an insurance exclusion clause, as a matter of law; that as to other substances there may not be such public familiarity as to have created any general concept whatever, and that the question in such a case ordinarily will be one for appraisal by the jury on the evidence produced; and that as to still other substances some general concept may exist but can not be said to be legally clear, or it may possibly be subject to some variation with the conditions and hence not absolute, and that here also whether the substance involved constitutes a poison will have to be determined on the facts and circumstances of the particular case, but with the right to apply to the evidence such common knowledge and experience as may exist with respect to the substance. As to any substance which requires jury appraisal, scientific concept may perhaps be of some evaluating assistance, but ultimate resolution of the question will depend upon the determination of what reasonably would be the general public concept in the situation.

In the present case, the trial court's instructions nowhere told the jury on what basis it should determine whether the insured's death from nembutal was a death from poison. The jury was merely instructed that its verdict should be for the insurer, if it believed from the evidence that the insured's death was the result of poisoning. In submitting the special interrogatory "Was the insured's death the result of poisoning?" the court similarly made no explanation of what concept or standard the jury was required to employ in attempting to answer the question.

A mere instruction omission, without a specific request,² would of course not ordinarily prompt us to reverse a judgment, but the situation here is one in which we are convinced that the jury was confused and not competently able to determine the proper principle to be applied, and where the implied concept of the instruction had at least been attempted to be challenged. The exclusive emphasis of the scientific concept in the evidence, with no indication of the right to be guided by any general public concept, seems to us, in the particular circumstances of the case, to have made the bare instruction, that the jury was to determine from the evidence whether the insured's death was the result of poisoning, imply to the jury's mind that the question whether nembutal was a poison was to be resolved solely on the basis of the testimony of these witnesses. The proceedings which thereafter occurred in connection with the jury's deliberation tend to confirm the jury confusion.

The record shows that, after the jury had deliberated for several hours, it reported that it was unable to agree. The trial judge urged it to continue its deliberation, and the foreman then asked to have the instructions re-read. The court, instead, summarized the situation and as to the poisoning issue stated: "There is another defense in the case — that if the death resulted from poisoning, accidentally or unaccidentally administered, if the death resulted from poisoning, there could be no recovery in the case. Go over it again. Did the death result from poisoning? No recovery, whether accidentally or unaccidentally administered."³ (Emphasis added.) In approximately an hour, the jury returned to the court room with a finding that the insured's death was one from poisoning.

From all of this and from the proceedings generally, we have been unable to escape the conviction that the jury was led to believe that the view of the medical experts was controlling upon it. The record seems to us to indicate that the trial judge himself regarded the scientific concept as the governing legal standard. He seemingly did not believe that there should be any limitation or clarification made of the implied concept of the instruction, even after the beneficiary had purported to attack its...