Maryland Casualty Co. v. Morrow

• Decision Date: 11 May 1914
• Docket Number: 1838.
• Parties: MARYLAND CASUALTY CO. v. MORROW.
• Court: U.S. Court of Appeals — Third Circuit

213 F. 599

MARYLAND CASUALTY CO. v. MORROW.

No. 1838.

United States Court of Appeals, Third Circuit.

May 11, 1914

In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.

Don Rose, of Pittsburgh, Pa., for plaintiff in error.

Ralph P. Tannehill, of Pittsburgh, Pa., for defendant in error.

Before BUFFINGTON and McPHERSON, Circuit Judges, and WITMER District judge.

J. B McPHERSON, Circuit Judge.

The plaintiff below, Mrs. Amanda Morrow, was the beneficiary in a policy of accident insurance upon the life of her husband and obtained a judgment in the District Court. The case is now before us upon assignments of error that complain (1) of the court's refusal to direct a verdict in favor of the defendant company, and (2) of certain instructions in the charge, to which reference will hereafter be made. The facts are as follows:

During the night of December 27, 1910, Joseph C. Morrow, the insured, a resident of the city of Pittsburgh, while on his way to the bathroom of his house, stubbed the fourth toe of his left foot against a chair, and the company concedes that the occurrence was accidental. The injury caused a good deal of pain, but was not then regarded as serious. Home remedies were used until January 20th, when a physician was summoned who found that the middle phalange, or bone, had been broken. The doctor treated the toe until January 25th, when the insured was removed to a hospital. Apparently no gangrene had then appeared-- at least not definitely-- but the amputation of the toe was believed to be desirable. The usual examination of the patient's urine was promptly made, and he was found to be suffering from diabetes; about 6 per cent of sugar being discovered. As the presence of diabetes makes an operation hazardous, he was treated medically for this trouble with some success for nearly four weeks. Soon after he entered the hospital, gangrene made itself known and spread over part of the foot and the leg, so that an operation became imperative. On February 22d the leg was removed above the knee, but, although the gangrene apparently ceased to spread, the insured died on March 6th. An autopsy two days later disclosed several diseases, pneumonia of both lungs, arterio-sclerosis-- thickening of the left femoral and iliac arteries, with a thrombus or blood clot in one of them-- the presence of pus and numerous gallstones in the gall bladder, a chronic affection of the heart, enlarged kidneys showing chronic Bright's disease, and a diseased pancreas. The pneumonia may be disregarded, since this may have been contracted in the hospital; but the medical testimony made it clear that some, if not all, of the other diseases existed at the time of the accident, and were not caused thereby. It was undisputed that the presence of diabetes required the operation to be delayed, and that the gangrene was diabetic. The leg was removed only as a last...