Fidelity & Cas. Co. of New York v. Thompson

• Decision Date: 18 May 1907
• Docket Number: 2,435.
• Citation: 154 F. 484
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. THOMPSON.
• Court: U.S. Court of Appeals — Eighth Circuit

154 F. 484

FIDELITY & CASUALTY CO. OF NEW YORK v. THOMPSON.

No. 2,435.

United States Court of Appeals, Eighth Circuit.

May 18, 1907

George L. Nye (W. Scott Bicksler and Edmon G. Bennett, on the brief), for plaintiff in error.

Charles A. Murray (Thomas B. Stuart, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

VAN DEVANTER, Circuit Judge.

This writ of error challenges a judgment obtained by the assured upon a policy of accident insurance. By three several assignments of error we are asked to say that there was no substantial evidence to sustain a finding for the plaintiff and therefore that a verdict for the defendant should have been directed. One of these relates to the denial of a motion for a directed verdict made by the defendant at the conclusion of the plaintiff's case in chief, another to the disposition of a like motion made at the conclusion of all the evidence, and the other to the denial of a motion for a new trial.

Of these assignments it is sufficient to observe that the first motion and the exception to its denial were waived, because the defendant proceeded to introduce evidence in its own behalf (School District v. Chapman (C.C.A.) 152 F 887); that the second motion was also waived, because a direct ruling thereon was not insisted upon, and no exception was reserved in that connection (Newport News, etc., Co v. Pace, 158 U.S. 36, 15 Sup.Ct. 743, 39 L.Ed. 887; National Bank of Boyertown v. Schufelt, 76 C.C.A 187, 145 F. 509); and that error cannot be assigned upon the denial of the third motion, because in the federal courts a motion for a new trial is addressed to the sound discretion of the court (St. Louis Southwestern Ry. Co. v. Wainwright (C.C.A.) 152 F. 624). In these circumstances the defendant is not in position to question the submission of the issues to the jury.

By the policy the plaintiff was insured 'against disability * * * resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent and accidental means,' and it was declared therein:

'This policy, subject otherwise to all its terms and conditions, covers blood poisoning sustained by physicians or surgeons resulting from septic matter introduced into the system through wounds suffered in professional operations.'

There was evidence tending to show that the plaintiff, as stated in the policy, was an operating dentist; that during the life of the policy a patient, upon whom he was in the act of professionally operating for affected teeth, suddenly coughed, and thereby particles of septic matter were conveyed from the patient's mouth to the conjunctiva, or mucous membrane, of the plaintiff's left eye; that the septic matter infected this membrane and was thus introduced into his system, and that he was in consequence wholly disabled from practicing his profession for a period of 10 weeks, and partially disabled for a succeeding period of 26 weeks. There was also evidence that he felt the impact of the particles upon the surface of the eye, but no evidence that it produced any pain at the time, or abraded, penetrated, broke, or bruised the conjunctiva, or...