Guardian Life Ins. Co. of America v. Kissner

• Decision Date: 06 May 1940
• Docket Number: No. 11449.,11449.
• Parties: GUARDIAN LIFE INS. CO. OF AMERICA v. KISSNER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F.2d 532 (1940)

GUARDIAN LIFE INS. CO. OF AMERICA v. KISSNER et al.

No. 11449.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1940.

Charles A. Neumann, of St. Louis, Mo., for appellant.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., on the brief), for appellees.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action at law in which the appellees as plaintiffs brought action against the appellant on two policies of life insurance in the sum of $5,000 each, upon the life of Adam G. Kissner, Sr., issued by appellant, with a double indemnity provision in each of the policies for the payment of an additional sum of $5,000 under each policy upon receipt of due proof that the death of the insured resulted independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means. The parties will be referred to as they were designated in the lower court.

No issue is made with reference to the pleadings. The petition was in conventional form, admitted that the defendant had paid the face amount of both policies, alleged that the insured sustained bodily injuries effected through external, violent and accidental means, which directly and independently of all other causes resulted in his death, and asked judgment for the additional sum of $5,000 upon each policy as double indemnity benefits for accidental death of the insured. The defendant's answer put in issue the allegation that the insured's death resulted from injuries effected solely through external, violent and accidental means, which, independently of all other causes, resulted in his death. On trial, defendant interposed motion for a directed verdict at the close of all the testimony, which motion was denied and the cause was sent to the jury upon instructions to which no exceptions were taken by defendant. The jury returned a verdict in favor of plaintiffs, upon which judgment was entered in favor of them, and defendant prosecutes this appeal.

In the final analysis, the only issue presented goes to the correctness of the ruling of the court in denying defendant's motion for a directed verdict. This presents for our consideration the question as to whether there was substantial evidence to sustain a verdict for the plaintiffs. In considering the question on review, we must assume the evidence presented in behalf of the plaintiffs was true, and they are entitled to the benefit of all favorable inferences that may reasonably be drawn from the evidence. Massachusetts Protective Ass'n v. Mouber, 8 Cir., 110 F.2d 203; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720.

It was the contention of plaintiffs that the insured accidentally sustained a contused wound to his right ankle on or about March 1, 1935, when he fell while alighting from his automobile, and that this wound became infected, causing him to suffer from disordered conditions which directly resulted in his death. It appears from recitals in the certified copy of the death certificate offered in evidence by the plaintiffs that the principal cause of the death of the insured was septic bronchial pneumonia; that another contributory cause was diffuse cellulitis. This certificate contains the following additional data with reference to the death of the insured:

"23. If death was due to external causes (violence), fill in also the following:

"Accident, suicide, or homicide? Accident.

"Date of injury. 3/2/1935

"Where did injury occur? St. Louis, Mo.

"Specify whether injury occurred in industry, in home, or in public place. His own automobile, fell.

"Manner of injury. Alighting from his automobile.

"Nature of injury. Injured ankle."

The attending physician testified that on March 2, 1935, he treated the insured for a bruised condition of the inside of his ankle just above the malleolus, or a contused wound; that such condition could hardly result from anything other than the application of force. The evidence showed that prior to March 1, he had had no such condition.

The court instructed the jury that in the absence of any evidence as to how such injury occurred, the fact that the insured sustained an injury produced by a violent and external means permitted the presumption that such injury was accidental. This charge was not excepted to and there is no serious contention that the evidence was insufficient to warrant the jury in finding that the insured sustained an accidental injury to his ankle on or about March 1st.

The challenge of the defendant goes to the question as to whether the accidental injury sustained was the proximate cause of the insured's death. On the question of proximate cause the court instructed the jury that, "Whether a cause is proximate or remote does not depend alone upon the closeness in the order of time in which things occur. An efficient and adequate cause being found, it must be deemed the true cause unless some other cause not incidental to it, but independent of it, is shown to have intervened between it and the result. If, for example, Adam...