Kerns v. Aetna Life Ins. Co.
| Decision Date | 20 July 1923 |
| Docket Number | 6199. |
| Citation | 291 F. 289 |
| Parties | KERNS v. AETNA LIFE INS. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George H. Fletcher, of Aberdeen, S.D. (A. W. Campbell and Roger A Campbell, both of Aberdeen, S.D., on the brief), for plaintiff in error.
G. N Williamson, of Aberdeen, S.D. (R. F. Williamson, St. Clair Smith and Alan Williamson, all of Aberdeen, S.D., on the brief), for defendant in error.
Before SANBORN, Circuit Judge, and BOOTH and FARIS, District Judges.
Plaintiff in error, as plaintiff below, sued defendant on a policy of accident insurance, on the life of her deceased husband George G. Kerns, wherein she was the beneficiary. At the close of the evidence on plaintiff's part, the trial court directed a verdict for defendant, and plaintiff seeks here a reversal of that ruling.
Errors in the exclusion of evidence offered by plaintiff are assigned, but none of these has merit, and, even if they had merit, the exclusion of the evidence offered did not affect and on no possible theory could have affected, the result. The policy sued on, provided for the payment to plaintiff, as beneficiary, of the sum of $7,500, in case of the death of assured, 'resulting directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental means,' in 90 days from such injury, whether with or without total disability, and, in case of total disability, within 200 weeks of such injury.
The assured was a physician and surgeon. On the 19th day of November, 1919, while eating, he swallowed a small piece of metal, which lodged in, and subsequently pierced, the oesophagus. From this accident he suffered much pain and was seriously ill, till about December 4, 1919, when he seemingly recovered fully and resumed the active practice of his profession. During the winter of 1919 and 1920 his professional duties were particularly heavy, owing to a prevalence of an epidemic of influenza, and he was kept almost constantly engaged, both day and night, in attendance upon his patients. All this notwithstanding, he gained in weight and seemed to be in perfect health.
On a night in the early part of March, 1920, while going on a professional visit, the automobile in which he was riding became stalled in the snow. He got out to assist the chauffeur to extricate the automobile by pushing on it; the chauffeur, it seems, remaining at the wheel. After the car was gotten clear of the snow, assured resumed his place therein, and on doing so stated that he had slipped and felt pain. Where he felt this pain is not disclosed by the evidence, further than it was 'up here,' as the witness expresses it. No one saw him slip, and, save and except his statement to the chauffeur, he never disclosed the fact of his having slipped to any one else; nor was it known till the summer of 1920, and after making proofs of loss, bottoming the claim of accidental death upon the fact that he had in November, 1919, accidentally swallowed the piece of metal.
His death occurred on the 19th day of April, 1920, and was due to abscesses, superinduced by the breaking down of the incapsulation surrounding the piece of metal, which he had swallowed in the month of November, 1919. The theory of the medical experts, who testified on the trial, was that this piece of metal had passed through the walls of the oesophagus and had then become incapsulated, quiescent, and harmless, but that the shock of slipping had dislodged it, and brought about a reinfection, which causing abscesses, had destroyed adjacent tissues and blood vessels and produced a hemorrhage, which was the immediate cause of his death.
Plaintiff is precluded from recovery here upon the initial accident of November 19, 1919, because, by the terms of the policy, death did not occur till more than 90 days subsequent to this initial accident, and because for more than 3 months thereafter, and after a seemingly complete recovery, assured was not totally disabled, but, on the contrary, was during such period engaged in his professional duties with more than his ordinary energy and activity.
This initial injury was concededly the remote cause of his death. But, before it became the proximate or direct cause thereof, it had by the lapse of time fallen into the category of a pre-existing disease or bodily infirmity, so far as the contract of insurance at least is concerned. Before it could in a physical sense become the cause of his death, it was necessary that the quiescence of this infirmity be disturbed. The slipping of assured, even if it is conceded that there is any competent evidence that it happened, could not, and, as it is tacitly conceded, did not, cause his death, of itself alone. This slipping merely by the shock superinduced, disturbed the quiescence of the incapsulated metal, causing a recrudescence of infection, which brought about death.
Assuming that the record conclusively shows that assured slipped and hurt himself, yet the question arises whether such slipping, independently of all other causes, brought about his death. Defendant by its policy of insurance agreed to become liable only in case 'death was caused directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means. ' In the case of National Masonic Acc. Ass'n v. Shryock, 73 Fed.loc.cit. 775, 20 C.C.A. 5, this court said:
...
To continue reading
Request your trial
-
Browning v. Equitable Life Assur. Soc. of the United States
... ... permit of no other construction. Irwin v ... Travelers' Ins. Co. , 243 A.D. 377, 277 N.Y.S ... 724; Dietlin v. Missouri State Life Ins ... Co. , 126 ... Metropolitan Life Ins. Co. , ... 154 Misc. 628, 277 N.Y.S. 722; Herold v. Aetna ... Life Ins. Co. (Tex. Civ. App.) 77 S.W.2d 1060; ... Massachusetts Protective Ass'n v ... Birmingham v. Equitable Life Assur. Soc. of ... U.S. , 225 Ala. 586, 144 So. 451; Kerns v ... Aetna Life Ins. Co. (C. C. A.) 291 F. 289; ... White v. Standard Life & Acc. Ins ... ...
-
Equitable Life Assur. Soc. of United States v. Gratiot, 1742
... ... the sole cause of death, double indemnity has been denied ... Stanton v. Trav. Ins. Co., (Conn.) 78 A. 317, 34 L ... R. A. (N. S.) 445; Com. Trav. Mut. Acc. Assn. v. Fulton, ... 61; ... White v. Standard Life & Acc. Ins. Co., (Minn.) 103 ... N.W. 735; Aetna Life Ins. Co. v. Bethel, (Ky.) 131 ... S.W. 523; Binder v. Natl. Masonic Acc. Assn., (Ia.) ... C ... A.) 79 F. 423; Aetna L. Ins. Co. v. Ryan, (C. C ... A.) 255 F. 483; Kerns v. Aetna L. Ins. Co., (C. C ... A.) 291 F. 289; Maryland Co. v. Morrow, (C. C ... A.) 213 F ... ...
-
Mahon v. American Cas. Co. of Reading, Pa.
...having the same effect in precluding recovery where the accident cooperates with a pre-existing disease. See, e.g., Kerns v. Aetna Life Ins. Co., 291 F. 289 (8 Cir.1923). Applying settled principles of construction of insurance contracts already noted, we conclude that the notably greater s......
-
Rieger v. Mutual Life Ins. Co. of New York
... ... Jiroch v. Travelers Insurance Co., 108 N.W. 456 ... (Neb.); Penn v. Standard Life & Accident Co., 73 ... S.E. 99 (N. C.); Aetna Life v. Dorney, 67 N.E. 254 ... (Ohio); Provident Life & Acc. Ins. Co. v. Campbell, ... 79 S.W.2d 292 (Tenn.); Western Indemnity Co. v. Mac ... Massachusetts Bonding & Ins. Co., ... 64 F.2d 33 (C. C. A. 8); National Masonic Acc. Assn. v ... Shyrock, 73 F. 774 (C. C. A. 8); Kerns v. Aetna ... Life, 291 F. 289 (C. C. A. 8). (b) The "proximate ... cause" rule is inapplicable where death resulting from ... the combined ... ...