McCulloch v. Mutual Life Ins. Co. of New York, 4574.

• Decision Date: 26 February 1940
• Docket Number: No. 4574.,4574.
• Citation: 109 F.2d 866
• Parties: McCULLOCH et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Fourth Circuit

109 F.2d 866 (1940)

McCULLOCH et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 4574.

Circuit Court of Appeals, Fourth Circuit.

February 26, 1940.

Ashton File, of Beckley, W. Va. and B. J. Pettigrew, of Charleston, W. Va. (File, Scherer & File, of Beckley, W. Va. on the brief), for appellants.

Thomas B. Jackson, of Charleston, W. Va. (Frank R. Lyon, Jr., of Charleston, W. Va., Louis W. Dawson, of New York City, and Brown, Jackson & Knight, of Charleston, W.Va., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and HENRY H. WATKINS, District Judge.

SOPER, Circuit Judge.

The Mutual Life Insurance Company of New York brought this suit against the administrator of the estate of Dr. John H. McCulloch and the beneficiaries of insurance policies on his life in the aggregate sum of $50,000, to establish the right to exhume the body of the deceased and perform an autopsy under a provision of the policies which purported to confer this right. The complaint sought to enjoin the defendants from interfering with an autopsy to be performed under such terms and conditions as the court might impose, and from instituting in the meanwhile any action on the policies for the recovery of double indemnity, and sought also a declaratory judgment, if it should be disclosed that the death of the insured did not result from bodily injury effected solely through external, violent and accidental means, that the Insurance Company was not liable for double the face of the policies. The District Judge issued the injunction as prayed, after evidence was taken, and appointed a pathologist to perform the autopsy. Execution of the order, pending this appeal, was stayed upon the filing of a bond. This court has jurisdiction at this stage of the case to entertain an appeal from the order granting the injunction by reason of the provisions of the statute, 28 U.S.C.A. § 227.

Death occurred about 6 o'clock on Saturday evening, March 18, 1939, at the Black Knight Country Club near Beckley, West Virginia, where the residence of the insured was located. He fell while descending a flight of stairs leading from the second to the first floor of the club, and the force of the fall was so great that he sustained a multiple fracture of the skull and died within eight or ten minutes. There was evidence tending to show that he caught his left heel in a tread of the stairs and was pitched forward. He was examined by a physician two minutes after the fall. The physical symptoms and conditions were such as usually follow such a fall, and the injuries were such as would naturally result in death.

The District Judge found that the fracture of the skull was the apparent cause of death, and that there was no evidence of fraud or concealment respecting the physical condition and state of health of the insured prior to or at the time of his death. He made no finding that the deceased was suffering from any disease that contributed to his death, and there was no direct evidence on the point.

The record in the District Court upon which the issuance of the injunction was based, may be summarized as follows: The insured was 53 years of age, over 6 feet tall, and weighed 195 pounds. He was a physician in active superintendence of the Beckley Hospital of 155 beds, of which he was part owner, and he was also actively engaged in other business enterprises of considerable importance. At the time of his death he was apparently in good health. The company charged that the exact cause of the death was unknown, but that there was reason to believe that death resulted directly or indirectly from disease or bodily or mental infirmity, or from the effects of intoxicating beverages imbibed by the deceased; that he had been partaking freely and to excess of intoxicating beverages on the day of his death, and in fact had been drinking to excess during the five years immediately preceding his death, during which time he gained excessively in weight. The only direct evidence offered in support of the charge related to the use of intoxicants. On this point it was shown that he did not drink during the day, but was entirely sober and competent, and gave constant daily attention to his duties as an officer of various business enterprises; that he was an occasional moderate drinker when he visited the Country Club and sometimes showed the effects of alcohol although never so much as to lose control of himself; in short, that his habits with respect to the use of intoxicants were "about the same as 90% of the people who visit Country Clubs". He had had one drink about one and a half or two hours before his fall, and was not under the influence of intoxicants at the time.

The Insurance Company offered the testimony of two medical experts of Charleston, West Virginia, one of whom was a medical referee in its employ, and the other a pathologist who was accustomed to perform autopsies. Neither of them had examined the insured or had any personal knowledge of his physical condition or state of health at the time of the fall or the injuries then sustained. Each of them was asked and permitted to answer the following question without reference to any facts with respect to the physical condition or state of health of the insured other than is contained in the question itself, namely: Doctor, assuming that the deceased, Dr. John H. McCulloch fell downstairs at the Black Knight Country Club in Beckley and sustained a fracture of the skull and died within 8 or 10 minutes thereafter; that Dr. McCulloch was a man 53 years of age at the time of his death; was a large man, 6 feet or 6 feet 2 inches tall, and weighed around 195 pounds; I want to ask you what is the possibility, in your opinion as a physician, that Dr. McCulloch may have died from one of the following causes: 1. A coronary occlusion. 2. An arterial aneurism. 3. An apoplexy. 4. An internal hemorrhage from an ulcer or from cirrhosis of the liver; or that one of those causes may have contributed directly to his death? The answer in each case was that death from one of the enumerated causes was possible. The experts also testified that the use of alcoholic drinks by the insured preceding death would increase the likelihood that one of the enumerated causes contributed to his death — the greater the use, the greater the likelihood — and that the only method of ascertaining whether one of the enumerated diseases was a contributing cause of death was by an autopsy.

One physician who appeared on behalf of the policy holders testified that he examined the insured two or three minutes after the fall and before his death, and found conditions inconsistent with either a coronary occlusion or an arterial aneurism. In his opinion, the cause of death was clearly a brain hemorrhage induced by the fracture. Of the five other physicians who examined the body the same evening, two were x-ray specialists and testified as to the fracture; the remaining three were of the unanimous opinion that the fracture caused the death. It was also shown that an apoplexy could not be determined...