Mutual Life Ins. Co. of New York v. Asbell

• Citation: 163 F.2d 121
• Decision Date: 08 December 1947
• Docket Number: No. 5597,5598.,5597
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. ASBELL. TRAVELERS PROTECTIVE ASS'N OF AMERICA v. SAME.

163 F.2d 121 (1947)

MUTUAL LIFE INS. CO. OF NEW YORK v. ASBELL.

TRAVELERS PROTECTIVE ASS'N OF AMERICA v. SAME.

Nos. 5597, 5598.

Circuit Court of Appeals, Fourth Circuit.

August 2, 1947.

Writ of Certiorari Denied December 8, 1947.

S. Augustus Black, of Columbia, S. C. (Pinckney L. Cain, Thomas, Cain & Black; Louis W. Dawson, of New York City, and Maurice P. Phillips, of St. Louis, Mo., on the brief), for appellants.

Christie Benet (Jeff D. Griffith, of Saluda, S. C., and J. B. S. Lyles, of Columbia, S. C., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

Writ of Certiorari Denied December 8, 1947. See 68 S.Ct. 221.

SOPER, Circuit Judge.

These suits under the two life insurance policies and the beneficial certificate in suit involve only the question whether the death of the policy holder resulted from bodily injury effected solely through external, violent and accidental means independently and exclusively of all other causes. The suit against the life insurance company is based on two policies for $5,000 and $2,000 respectively, each of which contains the usual double indemnity clause in case of death caused solely by accident. The company paid the face amount of the policies before suit, so that only the double indemnity is in issue. The suit against the association is based on a certificate of membership entitling the named beneficiary to $5,000 in case of the death of the member from such a cause. The District Judge overruled defendants' motions for directed verdicts, and submitted the cases to the jury which found in favor of the named beneficiary. Motions for judgments notwithstanding the verdicts were also overruled, and these appeals followed.

The legal question involved therefore relates solely to the sufficiency of the evidence to justify the submission of the cases to the jury. The family physician, who was the chief witness for the plaintiff, made out the death certificate and stated therein that the principal cause of death was "heart attack; probably coronary occlusion", and that the contributing cause was "he fell on the pavement and fractured both bones of left forearm". The certificate also contained the statement that death was due to "coronary occlusion or thrombosis and accidental injury". This witness testified at the trial that if the deceased had had a perfectly normal heart, he would not have had the attack of coronary thrombosis which brought on his death; but that he had a condition favorable to the onset of such an attack; that the accident brought the attack on, and that the heart condition and the accident both contributed to the fatal result.

Other uncontradicted medical testimony shows that in January, 1942, the deceased was treated for two weeks in a hospital for coronary thrombosis, a disease of the heart, which is not necessarily fatal but is caused or accompanied by an arteriosclerotic condition which persists and gives rise to further attacks. The deceased completely recovered from the attack of January, 1942, but because of that attack, submitted to periodic medical check-ups or examinations in the succeeding years of which the last prior to the accident was in November, 1945, and these examinations indicated that his condition was excellent. Accordingly, after his recovery in the early part of 1942, he resumed his ordinary activities.

On December 6, 1945, he slipped on a banana peel on the sidewalk, fell heavily and broke his left arm. He suffered severely from the pain and the shock which accompanied the accident. An operation was deemed desirable, and inquiry was made whether it could be safely performed in view of his previous heart condition. The doctors thought it safe and it was performed, but the patient continued to suffer from...