Illinois Commercial Men's Ass'n v. Parks

• Decision Date: 19 April 1910
• Docket Number: 1,606.
• Citation: 179 F. 794
• Parties: ILLINOIS COMMERCIAL MEN'S ASS'N v. PARKS.
• Court: U.S. Court of Appeals — Seventh Circuit

179 F. 794

ILLINOIS COMMERCIAL MEN'S ASS'N v. PARKS.

No. 1,606.

United States Court of Appeals, Seventh Circuit.

April 19, 1910

James Maher and Charles T. Thompson, for plaintiff in error.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge.

The Illinois Commercial Men's Association issued the policy of accident insurance in suit to Rodney N. Parks, on December 5, 1903, naming his wife, Florence E. Parks (defendant in error), as the beneficiary. On September 30, 1904, the assured received severe injuries from a fall on a sidewalk in Springfield, Minn., striking the corner of an iron hitching post and rail, wounding his chest and fracturing his first left rib, and death ensued within a few minutes. In her suit thereupon the beneficiary recovered the verdict and judgment from which this writ of error is brought, and the only issues of fact in controversy, under the pleadings stipulations and testimony, are: (1) Whether the fall of the assured (above mentioned) was accidental, caused by a misstep or stumble on or off the sidewalk, or resulted alone from a diseased condition; and, (2) if accidental, Was the injury arising from the fall the cause of death, 'independent of all other causes' within the meaning of the policy of insurance?

Under the first issue, it is undoubted that the testimony of the single witness who saw the occurrence tends to establish (prima facie) an accidental fall, through a stumble by the assured while turning on the sidewalk from conversation with another person, to start in the direction of the hotel where he was registered. It appears, however, that there was no obstruction in the sidewalk at the place where he was observed to stumble (as described 'over his feet') so that this testimony is not inconsistent with the contention on behalf of the plaintiff in error (resting on other circumstances in evidence), that the fall may have been caused by disease of the heart.

The second issue is one of mixed law and fact, arising under the terms of the policy and predicated on testimony of an autopsy held at Minneapolis, in the interest of the insurer (after the arrival there of the body), tending to show diseased conditions of the heart and kidneys. This testimony is applicable as well to the first issue; its credibility and force under either issue was for the jury to determine, and comment thereon is not deemed proper, beyond the remark that it was material and raised both issues. Supplemented by other expert opinion testimony introduced by the plaintiff in error, the evidence tended to establish the defense that the diseased conditions appearing on the autopsy were either the cause of the fall and death of the assured, or contributory causes of death, if not of the fall, and that the injuries received from the fall upon the hitching post and rail were insufficient to cause death without such diseased conditions. On the other hand, the testimony on the part of the beneficiary tends to prove that the assured was in excellent health, apparently free from disability or disorder of heart or kidneys, throughout the 30 years of his married life with the beneficiary, and up to the instant of his fatal fall; that he was transacting business with a customer immediately before starting for the hotel and then appeared to be in the best of mental and physical condition; that it is improbable (according to other expert opinion testimony) that the chronic diseased conditions, so described in the testimony for plaintiff in error as the cause of death, could have existed and reached the fatal stage without prior manifestation in the health of the assured; that the injury and shock received from striking the hitching post were sufficient alone to cause death; and that the evidence that the assured 'grabbed the railing' after his tumble was indicative of consciousness therein.

Under the evidence above recited, we are of opinion that error is not well assigned for refusal of the trial court to instruct the jury to find in favor of the plaintiff in error, even if the contract of insurance be interpreted as sought on its behalf. The testimony in support of liability was sufficient, to say the least, to authorize submission of the issues to the jury, and the only meritorious question raised is whether error appears in an instruction to the jury reading as follows:

'There is evidence here that at the time the autopsy was performed, within a few days after the death of Rodney N. Parks, the heart of Parks and the kidneys of Parks appeared to have been in an unhealthy condition. There is evidence before you, from which you are authorized to infer and believe and conclude that at the time Parks died he had a defective heart and defective kidneys. Now, in connection with that situation, I instruct you, gentlemen of the jury, that even though you believe that at the time Parks died, at the time he struck the corner of this hitching post or hitching rack, at the time his body started from an erect attitude to fall, his heart or kidneys, or both his heart and kidneys were in a defective and unhealthy condition, and that at the time he started to fall he was not dying-- to put it in common language-- was not 'dropping dead,' and that he was falling from some accidental cause, such as stumbling or slipping or getting his feet tangled, and struck the corner of this hitching rack and a blow was received thereby upon his chest, which caused him to die, you will find a verdict solely and independently of all other causes, in favor of this plaintiff, even though you may believe from the evidence that death might not have or would not have resulted had it not been for the unhealthy heart or the unhealthy kidneys or both, because we are dealing with causes and not conditions.

The defective heart and defective kidneys went to make up the condition. The blow which the man received, if it caused the death, because of the defective heart and defective kidneys, was the sole cause of death.'

The contract of insurance in suit consists of three parts: (1) The so-called policy; (2) the application for membership; and (3) the by-laws of the association. (1) The policy expressly recites its issuance, 'In consideration of the application for membership * * * referred to and made a part of this contract, and of each of the statements and declarations therein,' which are adopted and warranted to be true, and 'the only statements or declarations upon which this contract is made'; and it promises payment of $5,000, 'in the case of the accidental death of said member' within 90 days after proof of accidental death, subject, however, to 'all the provisions of the by-laws of said association.' (2) The application is made up of 23 questions and answers, followed by this recital:

'I am aware that the benefits of this association do not extend to hernia, orchitis or to any bodily injury or death happening directly or indirectly in consequence of disease, or to any injury of which this association is not notified within fifteen (15) days of its occurrence, or to any

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