Harrison v. New York Life Ins. Co., 6706-6709.

• Decision Date: 29 June 1935
• Docket Number: No. 6706-6709.,6706-6709.
• Citation: 78 F.2d 421
• Parties: HARRISON et al. v. NEW YORK LIFE INS. CO., and three other cases.
• Court: U.S. Court of Appeals — Sixth Circuit

78 F.2d 421 (1935)

HARRISON et al. v. NEW YORK LIFE INS. CO., and three other cases.

Nos. 6706-6709.

Circuit Court of Appeals, Sixth Circuit.

June 29, 1935.

Lowry F. Sater and John M. Rankin, both of Columbus, Ohio (Vorys, Sater, Seymour & Pease, of Columbus, Ohio, on the brief), for appellants.

Francis Wright and Earl Morris, both of Columbus, Ohio (Frederick L. Allen and Louis H. Cooke, both of New York City, and Phineas M. Henry, of Des Moines, Iowa, on the brief), for appellees.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

The four cases were consolidated for trial below, and for argument on appeal. The appellants are the executors of the estate of Wilbur Vernon Harrison, deceased, and residents of Ohio. The appellees are insurance companies incorporated under laws of states other than Ohio. The deceased was insured by policies in appellee companies, the contract with the Travelers' being a straight accident policy and the others life policies with a double indemnity clause for accidental death.

The deceased was instantly killed on May 14, 1930, by a fall from the window of a room on the fourteenth floor of the Union League Club, Chicago. The Travelers' denied any liability, and the other defendants contested double liability on the ground that the death of the insured was not effected solely and independently and exclusively of all other causes by accidental means; all contending (1) that Harrison died as a result of suicide, and (2) if not from suicide, then that illness or disease was a contributing cause. The issues were submitted to the jury, with the result that general verdicts were returned in favor of the defendant companies, and appeals by plaintiffs below followed.

Two grounds of error are assigned in support of reversal; the first, the failure of the court to grant a request for instruction to the effect that the burden was upon the defendants to establish that death was caused directly or indirectly, wholly or partly, by physical or mental infirmity, illness, or disease in some form, or conversely, placing the burden in this respect upon the plaintiffs; the second, the admission in evidence, over objection, of the opinion of the insured's physician, that illness was a contributing cause of death.

The insured was a citizen of Columbus, Ohio, and a man of substantial affairs. At the time of his death he owed considerable money, but his income likewise was large. About the 1st of May, 1930, he consulted Dr. Coons, his family physician, complaining that he was mentally and physically tired, was carrying a heavy load, sleeping poorly, and had attacks of dizziness or vertigo. The physician found his general condition good, diagnosed his trouble as nervous exhaustion, and prescribed exercise in the open air. In pursuance of this advice the insured went to French Lick Springs, Ind., for a few days of recreation and golf. An intimate friend who accompanied him noticed nothing unusual about his condition, though he spoke of having been subject to dizziness and vertigo. After six days at French Lick the insured went to Chicago, and on the evening of May 13th registered at the Union League Club, where he usually stopped. The hotel employees noticed nothing unusual about his conduct. About 7 o'clock on the following morning the telephone operator of the club received a call from the room occupied by the deceased asking that a bell boy be sent. Before the request could be complied with another call was received asking for a doctor. Before a physician could be summoned report came that the insured's body had been found in the street badly crushed. The only window in the room he had occupied was approximately 140 feet above the street. No one was with the insured that morning, and no one saw the fall. The room was found to be in good order, except that underneath the window, and a little to the right, the carpet was dragged back about half an inch from the wall, and the tack holding it down had been pulled out. The window was open about eighteen and a half inches. Fingerprints were discovered extending over the outside and inside window sill. It was claimed that they were those of one hanging out of the window before letting go. In rebuttal an expert testified that if the finger marks were made by the insured he was facing the window as a man would face it leaning out.

The theory of the plaintiffs at the trial was that the insured had leaned out of the window, perhaps to take a breath of fresh air, and while in that position had lost his balance, or the carpet had given way, causing his foot to slip, or that some attack of indigestion or other temporary weakness had caused him to fall. The defendants, as has been stated, claimed suicide, and in the alternative, that while the insured was leaning out of the window he had been seized with an attack of vertigo or dizziness due to the nervous exhaustion from which he was suffering, and was thereby caused to lose his balance and fall to his death; that because of this fact his death was caused directly or indirectly by bodily or mental infirmity, illness, or disease.

The several policy provisions with respect to indemnity, while not identical, are similar, and for present purposes it is sufficient to set forth one as typical of all. We take at random the provision in the New York Life policy. It recites that the company will pay a certain sum upon due proof of death, or,

"Double the face of this policy upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within sixty days after sustaining such injury.

"This double indemnity benefit will not apply if the insured's death resulted from * * * physical or mental infirmity; or directly or indirectly from illness or disease of any kind."

It is appellants' contention that while the burden of proof remains always upon the plaintiffs to establish that the death resulted directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental cause, the plaintiffs meet this burden by showing that death resulted from bodily injuries alone, and that such bodily injuries were caused by violent and external means, and were accidental, in that the sole efficient or predominant cause was accidental. But it is further contended that if the insurer seeks by an exception in the policy to relieve itself of liability in the event that the sole and efficient cause is itself produced by circumstances such as physical or mental infirmity, or illness or disease of any kind, that it then must both allege and prove the facts which bring the exception into operation, and that the burden of proof...