Korff v. Travelers Ins. Co. of Hartford, Conn.

• Decision Date: 17 April 1936
• Docket Number: No. 5657.,5657.
• Citation: 83 F.2d 45
• Parties: KORFF v. TRAVELERS INS. CO. OF HARTFORD, CONN.
• Court: U.S. Court of Appeals — Seventh Circuit

83 F.2d 45 (1936)

KORFF v. TRAVELERS INS. CO. OF HARTFORD, CONN.

No. 5657.

Circuit Court of Appeals, Seventh Circuit.

April 17, 1936.

William R. Higgins, of Indianapolis, Ind., and Edwin C. Henning, of Evansville, Ind., for appellant.

Burke G. Slaymaker and Daniel H. Ortmeyer, of Evansville, Ind., for appellee.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

This case presents the problem of the liability of an insurer under a policy insuring against accidental death, where death results from the concurrence of an accident and a diseased condition, neither of which would have been sufficient to cause death but for the concurrence of the other. The court ruled on the question as a matter of law, directing a verdict in favor of the insurer, on the admission that "* * * the plaintiff does not contend that the accident, the fall alone, under the evidence in the case would have caused the death, if it had not been for the diseased condition of the body."

The policy in question, under which the decedent was insured, was a straight life policy with the following provision for additional indemnity in case of accidental death:

"* * * if death * * * shall result from bodily injuries effected directly and independently of all other causes through external, violent and accidental means within ninety days from the date of the accident which shall cause such injuries, and of which, except in case of drowning or internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, provided such death does not result * * * directly or indirectly from disease in any form, the Company will pay $5000 in addition to the amount of insurance payable in the event of the death of the Insured under the aforesaid contract."

The statement filed by the claimant with her proof of death showed the following facts as surrounding the death:

"* * * On the morning of March 20, 1934, Walter B. Korff and William Bootz set out for Louisville, Kentucky, via French Lick, in the Ford Coupe of Walter B. Korff. As they neared French Lick the gas gauge on the car registered about two gallons which was amply sufficient to take them many miles, but when at the top of a hill and down another the gasoline supply became exhausted. Walter B. Korff and Mr. Bootz got out of the car, pushed it around to head back to a filling station. They pushed it up the hill, and both jumped in it to coast it back to the filling station which was at the foot of the hill. As Walter B. Korff attempted to jump in the car he caught in the door and slipped, however managing to hang on and get into the car. When the gas station was reached and as the gas tank was being filled Walter B. Korff got upon the left running board of the car, leaned over the steering wheel and began to rock the car to determine what was wrong with the gas gauge. While doing this he slipped, falling violently to the concrete with such force that the fall could be heard sixty feet away. A contusion and bruise were manifest on the back of the head. An autopsy was held which showed a sclerosed area of about 3/5 of an inch of deceased's anterior branch of the left coronary artery which probably had been forming over a period of years, naturally reducing the lumen of the artery, however, not to the extent of curtailing his activities in performing his customary duties. The violent exertion in pushing the car, slipping and hanging on to it as it coasted, rocking the car, slipping in the act, falling and striking his head violently against the concrete, caused an increased blood supply to the heart but (because of) the partial occlusion of the artery above described this increased blood supply was prevented from entering the heart muscles, the entire heart muscles went into a state of contraction and death followed. * * *"

Under these facts the court directed a verdict in favor of the insurer, holding that it was a case where general law applied rather than local law, and that the rule of general law excluded liability in such a case.

Appellant seeks to bring this case within the ruling laid down in Continental Casualty Co. v. Lloyd, 165 Ind. 52, 73 N.E. 824, 826. There decedent was insured under a policy which limited liability to "bodily injuries effected through external, violent, and purely accidental causes — such injuries as shall, solely and independently of all other causes, necessarily result in death within ninety days." Decedent suffered a very heavy fall, followed by death nineteen days later, said to have been caused by the fall. An autopsy disclosed the presence of a brain tumor, and there was testimony that but for the tumor the death would not have followed the fall. The court, however, held that the jury was justified in finding that the fall was the proximate cause of death, because it incited the fatal energy of the tumor which was at least dormant, and would have remained so for an indefinite period, and perhaps until death from some other cause supervened. While it appears in that case that the jury had some evidence before it to indicate that the fall was the sole cause of death, the decision does not rest on that, but holds that the policy limitation goes only to the proximate cause, so that if the diseased condition would not have caused death of...