Lincoln Nat. Life Ins. Co. v. Erickson

• Decision Date: 09 August 1930
• Docket Number: No. 8847.,8847.
• Parties: LINCOLN NAT. LIFE INS. CO. v. ERICKSON.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.2d 997 (1930)

LINCOLN NAT. LIFE INS. CO. v. ERICKSON.

No. 8847.

Circuit Court of Appeals, Eighth Circuit.

August 9, 1930.

Herbert G. Nilles, of Fargo, N. D. (Daniel B. Holt and John S. Frame, both of Fargo, N. D., C. G. Dosland, of Moorhead, Minn., and R. F. Baird, of Ft. Wayne, Ind., on the brief), for appellant.

Charles Loring, of Crookston, Minn., and Julius J. Olson, of Warren, Minn. (Oscar R. Knutson, of Warren, Minn., and John H. Hougen, of Crookston, Minn., on the brief), for appellee.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a judgment after verdict in favor of plaintiff-appellee in a suit on a life insurance policy containing a double indemnity provision. The action was begun in the state district court and thereafter removed to the federal court on the ground of diversity of citizenship.

The policy was for $10,000, with a double indemnity clause which read as follows: "It is Hereby Agreed That if Magnus Erickson, the insured under the above numbered Policy shall, during the premium paying period of the Policy and while no premium is in default, sustain bodily injury, effected directly through external, violent and accidental means, (suicide, sane or insane, or any attempt thereat, sane or insane, not included) exclusively and independently of all other causes, which shall within ninety (90) days of the event causing the accident, result in the Death of the Insured * * * The Company in case of such accidental death will pay to the Beneficiary or Beneficiaries hereunder upon surrender of the said Policy and this Double Indemnity Benefit Double The Face Of The Policy, making the total amount payable Twenty Thousand Dollars."

The policy also contained the following condition governing the double indemnity benefit: "This Double Indemnity Benefit does not cover death * * resulting directly or indirectly from disease in any form."

The complaint alleged that plaintiff was sole beneficiary under the policy; that on or about the 23d of November, 1928, "said Magnus Erickson husband of appellee, through external, violent and accidental means, unexpectedly and accidentally received a physical injury causing an abrasion in the skin of his face; that as a result of said abrasion a streptococcic infection started in the face of said Magnus Erickson and spread throughout his system and as a result thereof he became infected therewith and died therefrom on said 30th day of November, 1928; that said infection and the death of said Magnus Erickson were directly and proximately due to said accidental abrasion of his skin and that said death was due to a cause insured against by defendant under said `Double Indemnity Benefit' agreement and was the result of an accident sustained and effected directly through external, violent and accidental means, exclusively and independently of all other causes, and that said Magnus Erickson died within ninety days of the event causing said accident."

The defendant company, the appellant, prior to the bringing of the action, paid $10,000, the face amount of the policy, without prejudice to the rights of the beneficiary, but refused to pay anything under the double indemnity clause, denying its liability thereunder.

On the trial, at the close of plaintiff's evidence, defendant moved for a directed verdict, on the ground of failure of proof. The motion was denied, and defendant excepted. Defendant introduced no evidence. The case was submitted to the jury on plaintiff's evidence, and a verdict was returned in her favor.

The evidence tended to show the following facts: The deceased was a resident of Oslo, Minn., was manager of the Oslo Mercantile Company, and also interested in farming. On Friday morning, November 23, 1928, he went to his store, and later in the forenoon his wife drove in an automobile to the store, picked him up, and they drove to her father's farm in North Dakota, about 2½ miles distant. After an early dinner, plaintiff's father, Mr. Ferguson, and the deceased, drove to Forest River. On the way they stopped at Ardock. The deceased went into a barber shop at that place and remained there about a half hour. Mr. Ferguson did not go in. The deceased came out and the two went on to Forest River and transacted business there, and at several other places; and then returned to the home of Mr. Ferguson, where they had supper. Mr. Ferguson did not observe whether deceased had been shaved. Plaintiff did observe that deceased had been shaved. After supper, plaintiff and deceased drove back to the store at Oslo. They both went in. The deceased talked with one of his associates, Pearson, and in the course of the talk called attention to what appeared to be a small cut on the chin of the deceased. Plaintiff returned home, and deceased returned later. Next morning, Saturday, at breakfast, plaintiff observed that the chin of deceased on the right side was inflamed underneath, like a little pimple, and that there was a small cut in the skin. The deceased went to his store at the usual hour in the morning, complained of not feeling well at lunch time, and did not go to lunch but returned home in the afternoon. Plaintiff, on returning home about the middle of the afternoon, found deceased in bed. He complained of not feeling well. She gave him an alcohol bath and called Dr. Wiltrout, who lived next door. Dr. Wiltrout was a regularly licensed physician of 17 years' experience. He was the family doctor of deceased. He examined deceased about 4:30 p. m. Saturday and found his pulse 100, temperature 102. He also found a small raised inflamed area on the middle chin. He prescribed as a local application for the chin an ointment for superficial condition; systematic treatment was also prescribed. The doctor also discovered that deceased had a mild bronchitis; and the temperature, chills, and muscular pains were thought by him to indicate influenza.

Visits to the deceased were made by Dr. Wiltrout on the 25th and the 26th, and the same treatment was continued. The pulse and temperature continued high and the inflamed area on the chin gradually enlarged.

On the 27th Dr. Edward Bratrud was called in consultation. Change was made in the treatment. Hot packs were applied to the chin, and the systematic treatment was altered. The infected area continued to enlarge. A microscopic examination of a smear taken showed streptococci present. Antistreptococcic serum was given intermuscularly. A count of the white corpuscles showed 12,000. The patient grew progressively worse. Late on the 29th, Drs. Blegen and Hetherington were called in consultation. Another count of the white corpuscles showed 6,000. On the forenoon of the 30th the patient died.

Dr. Wiltrout testified that in his opinion the bronchitis and the influenza spoken of did not contribute in any way to the death of deceased. On cross-examination he admitted that he had signed a death certificate in which he named influenza as a contributing cause of the death; and on recross-examination he testified as follows:

"Q. But your diagnosis then, Doctor, at the time you signed the death certificate, influenza was a contributing cause? A. Yes, sir.

"Q. And you so stated? A. Yes, sir.

"Q. And you now state that it was not a contributing cause? A. Yes, sir.

"Q. Then it was a question of doubt? A. Yes, sir, it was at the time I signed the certificate.

"Q. And it is still a question of doubt? A. Yes, sir.

"Q. It is a debatable question? A. Yes, sir, debatable question."

Dr. Edward Bratrud testified that when he called on the deceased on November 27th he found a typical streptococcus cellulitis of the lower lip and chin on the right side. There was a small abrasion on the chin.

Dr. Blegen testified over objection that when he called on the deceased on the night of November 29th he found him suffering from septicæmia due to streptococcic infection.

Dr. Theodor Bratrud, called as an expert, testified over objection that in his opinion, based upon the evidence given on the trial and assuming it to be true, the death of deceased was caused solely by streptococcic infection, and that the streptococcus entered through the abrasion on the chin.

Dr. O. Th. Sherping, called as an expert, testified to the same effect. Questioned further as to the cause of the death of deceased he answered over objection that in his opinion it came "from accidental infection of streptococcus." Motion to strike out this answer was denied.

On the foregoing facts the appellant contends that a case was not made out within the terms of the policy; and the appellee contends to the contrary.

An analysis of the provision above quoted from the policy shows that it covers a death caused by a bodily injury. The bodily injury must be one effected in a particular way; namely, directly through external means, and directly through violent means, and directly through accidental means. The bodily injury must be the exclusive cause of death independently of all other causes, and the death must occur within ninety days of the date of the accident.

The burden of proof was upon the plaintiff to show that the death resulted from a bodily injury exclusively and independently of all other causes, and that the bodily injury was effected directly through external, violent, and accidental means. Travelers' Ins. Co. v. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L. Ed. 308; National Masonic Ass'n v. Shryock, 73 F. 774 (C. C. A. 8); Aetna Life Ins. Co. v. Vandecar, 86 F. 282 (C. C. A. 8); National Ass'n Ry. Clerks v. Scott (C. C. A.) 155 F. 92; Aetna Life Ins. Co. v. Ryan (C. C. A.) 255 F. 483; Order of United Coml. Travelers v. Nicholson (C. C. A.) 9 F.(2d) 7; Mutual Life Ins. Co. v. Hatten, 17 F.(2d) 889 (C. C. A. 8).

Plaintiff, accordingly, sought to prove by circumstances and inferences that the abrasion of the skin on deceased's chin was accidentally caused in the barber shop at Ardock, and that the abrasion was...