Manufacturers' Acc. Indem. Co. v. Dorgan

• Decision Date: 06 November 1893
• Docket Number: 72.
• Citation: 58 F. 945
• Parties: MANUFACTURERS' ACCIDENT INDEMNITY CO. v. DORGAN.
• Court: U.S. Court of Appeals — Sixth Circuit

58 F. 945

MANUFACTURERS' ACCIDENT INDEMNITY CO. v. DORGAN.

No. 72.

United States Court of Appeals, Sixth Circuit.

November 6, 1893

Statement by TAFT, Circuit Judge:

This was a writ of error brought to reverse a judgment of the United States circuit court for the western district of Michigan, southern division, in favor of Susan E. Dorgan, for $5,200, on an accident insurance policy or certificate of membership issued by the defendant company upon the life of Thomas Dorgan, husband of the plaintiff. By the terms of the policy, $5,000 was payable to Susan E. Dorgan, the plaintiff below, 'within ninety days after receipt of satisfactory proof to this company of the death of the above-named member effected through external, violent, and accidental means within the extent and meaning of this contract and the condition hereunto annexed, and such injuries alone shall have occasioned death within ninety days of the happening thereof.'

The evidence tended to show the following facts:

Early in May, 1890, Thomas Dorgan, the insured, left his home in Kalamazoo, Mich., with three or four companions, on a fishing excursion to a place not many miles distant. The party took with them wine, whisky, and beer, and provisions. They arrived at their destination in the afternoon, made a camp near the brook in which they intended to fish, slept on cots under a tent, and arose early the next morning, about 3 or 4 o'clock, to go fishing. They fished from that time until shortly before noon, when the members of the party came into camp for lunch. The weather was not very cold, and there was some sunshine in the middle of the day. Dorgan spoke of having some difficulty with his throat and chest before going out on the trip. He took something for breakfast. He came in to lunch. The evidence does not disclose how much he ate, if anything. He went back to an island in the brook, where shortly afterwards, he was seen playing a trout. Twenty minutes later he was discovered lying in the brook, with his face downward, and submerged in six inches of water, dead. The bank was about eighteen inches above the water, and there were in the water stones, egg-size and smaller, upon which he might have struck his head. There were two bruises on his forehead. There was some little froth of a yellowish color about his mouth, and his face was purple. His tongue was somewhat inflamed. An autopsy was held on the evening of the day following the death. The blood in the corpse at the autopsy was rather fluid, and had not coagulated. The brain, the heart, and other vital organs were found in a normal and healthy condition. The autopsy was performed by one physician in the presence of two others. Evidence was introduced by the defendant tending to show that the deceased had suffered from defective action of the heart in its aortic valve. The autopsy failed to reveal any such structural defect, but all the tests were not applied. The evidence as to the defective action of the heart was given by the physician who had examined the deceased during his lifetime, and who testified to a murmur accompanying the beat of the heart, which was said to reveal such structural defect, though he admitted such a murmur is sometimes present when the action of the heart is normal, but the beat and circulation are feeble. There was also some evidence tending to show that the deceased had suffered from dizziness caused by this defective action of the heart.

Section 8 of the certificate of policy provided 'that the benefits under this certificate shall not extend to hernia, orchitis, nor to bodily injury of which there shall be no external and visible mark upon the body of the member; nor shall they extend to or cover accidental injuries or death resulting from or caused, directly or indirectly, wholly or in part, by or in consequence of fits, vertigo, somnambulism, or any disease existing prior or subsequent to the date of this certificate, or by blood poisoning, or by coming in contact with any poisonous substance, or by poison in any form, or by inhalation or otherwise of any form of chloride gas, nitrous oxide gas, or any other form of gas or gases of chloroform or ether, or by or in consequence of any surgical operation or medical or mechanical treatment, or by lockjaw, nor to any cause excepting where the injury is the sole cause of the disability or death. No claim shall be made under this certificate * * * where the death or injury may have happened in consequence * * * of voluntary exposure to unnecessary danger, hazard, or perilous adventure, * * * or where death or injury may have happened while the member was, or in consequence of his having been, under the influence of intoxicating drinks. * * * And that these benefits shall not be held to extend to disappearances, nor to any cause of death or personal injury, unless the claimant under the certificate shall establish by direct and positive proof that the said death or personal injury was caused by external, violent, and accidental means, clearly within the intent and scope of this policy, and was not the result of design, either on the part of the member or any other person.'

In the application which Dorgan made for membership in the company, (that is, for a policy,) he used this language: 'Inclosing $5 for admission fee, I hereby apply for membership, to be based upon the following restement of facts, which I hereby warrant to be true. Certificate to be subject to all its conditions and provisions. * * * (13) I have never had, nor am subject to, fits, disorders of the brain, or any bodily or mental infirmity, except as herein stated. * * * (15) My habits of life are correct and temperate, and I understand that the certificate will not cover any accidental injury which may happen to me either while under the influence of intoxicating drinks, (or any other narcotics,) or in consequence of having been under the influence thereof. (16) I am aware that the insurance will not extend to hernia, orchitis, nor to any bodily injury of which there shall be no external and visible sign; nor to any bodily injury happening directly or indirectly in consequence of disease; nor to death or disability caused wholly or in part by bodily infirmities, or by disease, or by the taking of poison, or by any surgical operation or medical mechanical treatment; nor to any case except when the accidental injury shall be the proximate and sole cause of disability or death.'

At the end of the application, Dorgan signed the following: 'Declaration: I, Thomas Dorgan, being desirous of becoming a member of the Manufacturers' Accident Indemnity Company, do hereby warrant the above statements to be true; and I hereby agree that this declaration and warranty shall be the basis of the contract between me and the said company, and that the certificate hereby applied for is accepted subject to all the conditions, classifications, and provisions contained or referred to therein.'

The company pleaded the general issue, and gave notice of the intention to prove, under that issue, that Dorgan was, at the time he made the application for the policy, subject to fainting spells or fits, disorders of the brain, heart disease, disease of the throat and chest, and that the statement to the contrary in paragraph 13 of his application above was false and untrue, rendering the policy void. The defendant also gave notice of the intention to prove that Dorgan did not die in consequence of any bodily injury in which there was any external and visible sign, but he died in consequence of disease, and that his death was not caused by any accident or accidental injury which was the proximate and sole cause of his death.

The jury, under charge of the court, returned a general and special verdicts. The special verdicts were as follows: 'First. Was Thomas Dorgan afflicted with heart disease at the time he made his application for the insurance policy issued by the defendant company, and at the time the policy in evidence in this suit was issued? Answer. No. Second. Was the death of Thomas Dorgan occasioned solely by accident, or was it occasioned or contributed to by disease or undue and imprudent exposure? Answer. Solely accidental. Third. Was Thomas Dorgan conscious at the time his body entered the waters of Spring brook, where he was found dead? And, if unconscious, was such unconsciousness occasioned by disease or undue and imprudent exposure? Answer. First, unconscious: second, occasioned by some temporary affliction, without undue and imprudent exposure.'

Osborn & Mills, for plaintiff in error.

Irish & Knappen, (E. M. Irish, of counsel,) for defendant in error.

Before JACKSON and TAFT, Circuit Judges, and BARR, District Judge.

TAFT Circuit Judge, after stating the facts as above, .

There are 25 assignments of error. Of these, 11 relate to rulings upon evidence. The court refused to permit defendant to ask this question of a witness who found the body of the deceased in the water: 'If he had been standing, in your judgment would it have been possible for him to have fallen in the water in the position in which you found him?' We think the objection to this question was properly sustained. It asked for an opinion of the witness on facts which it was quite possible for the witness to have detailed to the jury so that the jury might have drawn its own inference. That there are cases where the judgment of a witness as to distance and other circumstances may be directly asked him is true, but such questions are not permissible when it is practicable to draw out with exactness the data upon which such judgment must be founded. Parker v. Steamboat Co., 109 Mass. 499. It must be left somewhat to the trial court, and in the exercise of its discretion upon this question we do...