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

• Decision Date: 10 November 1939
• Docket Number: No. 9142.,9142.
• Citation: 107 F.2d 7
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. LOEB et al.
• Court: U.S. Court of Appeals — Fifth Circuit

107 F.2d 7 (1939)

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

No. 9142.

Circuit Court of Appeals, Fifth Circuit.

November 10, 1939.

Shepard Bryan and W. Colquitt Carter, both of Atlanta, Ga., for appellant.

Walter A. Sims, of Atlanta, Ga., for appellees.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellees as beneficiaries in a policy of insurance, appellant had issued upon the life of Mrs. Dowling, sued for and obtained a verdict and judgment for the double indemnity provided for in it. Appellant complaining of the overruling of its motion for a directed verdict made at the close of all of the evidence, insists that the case should not have gone to the jury, and the verdict and judgment may not stand. Its sole point is that, upon the undisputed evidence, the death of the insured did not result directly from bodily injury, independently and exclusively, of all other causes, but was contributed to by, and therefore resulted directly or indirectly from, bodily infirmity and disease. Conceding that the evidence must be viewed in the light most favorable to plaintiffs' claim, and that an instructed verdict in the case was not demanded, unless reasonable minds could not differ, upon the conclusion to be drawn from the evidence so viewed, appellant confidently urges upon us that the evidence is all one way.

Appellees recognizing that the insured's admitted diseases and infirmities make the case a close one for them, yet insist that upon a proper construction of the policy, there was evidence to take the case to the jury.

We do not think so. We think that under the settled construction of the policy provisions, conditioning payment of the double indemnity, the undisputed facts here demanded a verdict for defendant. A statement of these policy provisions and facts will, we think, make it clear that this is so.

A part of, and providing additional coverage to that afforded in, an ordinary life policy, double indemnity for death by accident, was promised upon "due proof that such death resulted directly from bodily injury received * * * independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent and accidental means, * * * provided, that this double indemnity shall not be payable * * * if such death result * * directly or indirectly from bodily or mental infirmity or disease of any sort."

These are the facts. Issued January 18, 1924, the policy, in addition to the ordinary life and the double indemnity benefits, provided for total and permanent disability benefits in the form of a monthly income. In the early part of 1933, the insured, Mrs. Dowling, filed claim on the policy for permanent and total disability benefits as of October 1, 1932, filing in support of her claim, a physician's statement that she was totally disabled as a result of "chronic nephritis, arteriosclerosis and arthritis." This claim was approved. All premiums on the policy, after October 1, 1932, were waived and insured was paid a monthly income of $50 per month from that date to her death on December 30, 1936. On August 16, 1933, medical statements in support of total disability were again furnished by her, the causes given being, "chronic nephritis, arteriosclerosis, chronic multiple arthritis, aural sepsis." In October, 1934, additional statements were furnished showing the same diseases, and also "diabetes mellitus", while those furnished in December, 1935, showed "arteriosclerosis, with hypertension, diabetes mellitus, generalized arthritis, chronic myo-carditis and interstitial nephritis."

As a checkup on these claims of permanent and total disability, the insurer had its medical examiner conduct examinations in May, 1934, and September, 1936. This examiner reported in 1934, that the insured was suffering from diabetes, chronic nephritis and hypertension, and in 1936, about three months prior to her death that, "claimant had retrograded perceptibly since her last examination and was then suffering from advanced cardio-vascular renal disease, chronic diabetes." Matters standing thus, the insured on December 17, 1936, cut her hand by striking it on the kitchen cabinet. No importance was attached to the cut and no doctor or physician was called, until several days later when the hand and arm became infected, and, on December 23, 1936, symptoms of blood stream infection appearing, she was taken to the hospital where she died on December 30, 1936. The causes of death, as shown on the hospital chart, were "diabetes mellitus, septicemia and uremia." Every physician who testified stated that her death was from a combination of causes, diabetes, chronic nephritis with uremia, staphylococcus in the blood stream.

Defendant's...