Jensma v. Sun Life Assur. Co.

• Decision Date: 03 April 1933
• Docket Number: No. 6932.,6932.
• Parties: JENSMA v. SUN LIFE ASSUR. CO. OF CANADA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F.2d 457 (1933)

JENSMA v. SUN LIFE ASSUR. CO. OF CANADA et al.

No. 6932.

Circuit Court of Appeals, Ninth Circuit.

April 3, 1933.

Richards & Haga, Oliver O. Haga, McKeen F. Morrow, and J. L. Eberle, all of Boise, Idaho, and D. L. Rhodes, of Nampa, Idaho, for appellant.

Scatterday & Stone, of Caldwell, Idaho, and Graves, Kizer & Graves, of Spokane, Wash., for appellees.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

SAWTELLE, Circuit Judge.

This is an appeal from a judgment in favor of the defendants-appellees in two law actions brought by the plaintiff-appellant to recover from the appellees sums alleged to be due under policies of insurance covering the death of her husband, Cornelius P. Jensma, from bodily injuries alleged to have been suffered solely "through external, violent and accidental means."

By agreement of the parties, the two causes were consolidated for trial and for hearing on the same record and briefs on appeal. The cases were tried by the court; a jury trial being expressly waived in writing.

The appellant's original complaint alleged that a physician "administered to the said insured a hay fever treatment (manufactured, designed and intended to be a treatment for the prevention and cure of hay fever), by injecting into the body of the insured a hay fever pollen extract, which said extract, without the knowledge, fault or negligence of the said Samuel A. Swayne the physician or of the said insured, contained the spores of an anaerobic gas producing organism, and from the effects of which the said insured did die."

During the trial, after a witness for the appellant had testified that the infection might have come from an infected garment worn by the insured, or from other sources that will be discussed later, the appellant obtained from the court permission to amend her complaint to read that the physician "administered or caused to be administered to the said insured a hay fever treatment (the extract used in said treatment manufactured, designed and intended to be a treatment for the prevention and cure of hay fever) by injecting into the body of the insured a hay fever pollen extract, and in so doing or as a result of which, without the knowledge, fault or negligence on the part of the insured, the spore or spores of an anaerobic gas producing organism entered the body of the insured, from the effect of which the insured did die," etc. A continuance was granted to the appellees that they might have an opportunity to meet the amendment.

The appellant requested the court below to make, among others, the following conclusion of law: "6. That plaintiff is entitled to judgment according to the prayer of her complaint." This request was denied.

Having refused to make the findings of fact and conclusions of law requested by the appellant, and having duly allowed the appellant exceptions to such refusal, the court below entered special findings of fact and conclusions of law in each of the causes, the findings in each case being the same.

The present controversy centers around finding No. IV, which was given as requested by the appellees, and was as follows: "On the 28th day of May, 1930, the insured Cornelius P. Jensma, caused a nurse to inject into his upper arm a serum made of pollen extract diluted with certain liquids. In making this injection the nurse used a hypodermic syringe which was partially filled with the serum. An infection caused by an anerobic gas-producing bacillus resulted, of which the insured died on the 31st day of May, 1930. There is no evidence respecting the time when the infection occurred, and the court is unable to determine from the evidence as to when it did occur. The nature of the infection was not discovered until at least two days after the injection was made. There is no evidence sufficient to establish the source of the infection which caused the injury complained of. The plaintiff's witness referred to all the possible sources of infection which were involved in the operation, and drew the conclusion that since an infection occurred it must have come from one of these sources. The sources thus referred to were the needle, the syringe, the extract, the surface of deceased's arm, the nurse's hands, and a contaminated substance touching the abrasion made by the injection after the operation was completed. The court finds that of these sources thus suggested the pollen extract was not the source of the infection, and that the needle and syringe were also not the source of the infection. It finds that the source of the infection was either the surface of the deceased's arm, or some substance unknown which, after the completion of the operation, came in contact with the abrasion left by it, or came in contact with the wound left by the scratching off of the small scab covering this abrasion, or came from some source undisclosed and not suggested by either party."

The appellees concede that even in a case of this character the appellate court has the power to consider the evidence, but insist that such examination must not go farther than to inquire "whether there is any evidence to support the findings and whether the findings support the judgment."

This is unquestionably the law. In Dooley v. Pease, 180 U. S. 126, 131, 132, 21 S. Ct. 329, 331, 45 L. Ed. 457, the court said:

"Where a case is tried by the court, a jury having been waived, its findings upon questions of fact are conclusive in the courts of review, it matters not how convincing the argument that upon the evidence the findings should have been different. Stanley v. Supervisors of Albany County, 121 U. S. 547, 7 S. Ct. 1234, 30 L. Ed. 1000, 1002.

"Errors alleged in the findings of the court are not subject to revision by the circuit court of appeals, or by this court, if there was any evidence upon which such findings could be made. Hathaway v. National Bank, 134 U. S. 498, 10 S. Ct. 608, 33 L. Ed. 1004, 1006; St. Louis v. Rutz, 138 U. S. 241, 11 S. Ct. 337, 34 L. Ed. 941, 946; Runkle v. Burnham, 153 U. S. 225, 14 S. Ct. 837, 38 L. Ed. 694, 697."

See, also, 28 USCA §§ 773 and 875; Blanchard v. Commercial Bank of Tacoma (C. C. A. 9) 75 F. 249, 252, 253; Wolff v. Wells, Fargo & Co. (C. C. A. 9) 115 F. 32, 34; Societe Nouvelle d'Armement v. Barnaby (C. C. A. 9) 246 F. 68, 71, 72.

We will therefore test the foregoing finding No. IV according to the rule laid down in section 875, supra; namely, "when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment." We will also inquire whether, under the undisputed testimony, there was any substantial evidence upon which the lower court might have based an assumption that the infection from which the insured died was caused by other than "external means." Finally, we will endeavor to determine whether, as a matter of law, the finding of the lower court, on its face, does not establish the fact that the "means" were "accidental."

If we find that the means whereby the fatal infection was transmitted to the insured were both "external and accidental," the appellant must be held to have made out her case; for the appellees admit that, as to the third element required by the policy — namely, that of "violence" — "the authorities are uniform in holding that any degree of force is sufficient to satisfy the provisions of the policy that the means must be `violent.'" This is a correct statement of the law.

First, were the means external?

It will be observed that the lower court found neither the pollen extract nor the needle and syringe to be the source of infection, but "that the source of the infection was either the surface of the deceased's arm, or some substance unknown which, after the completion of the operation, came in contact with the abrasion left by it, or came in contact with the wound left by the scratching off of the small scab covering this abrasion, or came from some source undisclosed and not suggested by either party."

In our view of the case, it is unnecessary to rehearse the evidence here. Suffice it to say that, relative to the court's finding as to the pollen and the needle and syringe, the evidence on that point was conflicting, and the finding cannot be disturbed.

At this juncture the court's finding seems to be largely one of conjecture. The suggestion concerning the infection's originating on the surface of the decedent's arm apparently was based upon a statement by Dr. Ernest E. Laubaugh, a witness for the appellant, who answered in the affirmative a question whether the lethal spores "might have been injected either from the surface of the arm, which was improperly or incompletely sterilized, or coming in contact with the vials, when her the nurse's hands were improperly or incompletely sterilized, or from the nurse's hands in pinching the flesh, * * * as well as getting in the syringe through this pollen extract."

Similarly, there is some slight evidence to support both the other affirmative conjectures made by the court; namely, that the source of infection was either "some substance unknown" which, after the completion of the operation, came in contact with the abrasion, or came in contact with the wound left by the scratching off of the small scab covering this abrasion.

Dr. Laubaugh testified that, after the injection, it might be very possible for a patient to rub "into that arm some of the same spore that had remained there, or the infection of a week or many days' standing." Dr. Laubaugh had previously answered in the affirmative a question whether the spores could rest dormant in a shirt, even after it had been "washed in the ordinary laundering process."

Vague as they are, all the foregoing conjectures of the court rest upon some testimony to be found in the record. All point inescapably to infection from some external means. All are in accord with the conclusion of Dr. Robert F. E. Stier, a witness heavily relied upon by the...