National Ass'n of Ry. Postal Clerks v. Scott

• Decision Date: 30 May 1907
• Docket Number: 270.
• Citation: 155 F. 92
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NATIONAL ASS'N OF RY. POSTAL CLERKS v. SCOTT.

155 F. 92

NATIONAL ASS'N OF RY. POSTAL CLERKS v. SCOTT.

No. 270.

United States Court of Appeals, Second Circuit.

May 30, 1907

Edward P. White, for plaintiff in error.

Carey D. Davie, for defendant in error.

Before LACOMBE, TOWNSEND. and COXE. Circuit Judges.

COXE Circuit Judge.

The certificate issued to Scott provides that if, during its continuance, he shall receive bodily injuries 'through external, violent and accidental means' and 'if death shall result from such injuries alone within one hundred and twenty days the association will pay not to exceed $3,000 * * * to Mary A. Scott, his wife.'

The complaint alleges that on or about November 1, 1902, at the village of Cuba 'and while the said Winfield L. Scott was actually engaged in the performance of his duties as a railway postal clerk he received severe injuries by accidental, external and violent means, which injuries received as aforesaid caused the death of said Winfield L Scott on the 25th day of January, 1903; that such injury received as aforesaid, was entirely accidental, and that the same was the cause of the death of said Winfield L. Scott and that such death occurred within the period of one hundred and twenty days after the occurrence of such injury.'

This allegation is denied by the answer, the defendant alleging that death resulted from natural causes.

At the close of the testimony the court was asked to direct a verdict for the defendant on the ground that the plaintiff had failed to prove a case of death from accidental causes. The court was at first disposed to grant the motion, saying:

'My impression is that there is no evidence here of accidental death. I think I must ask you to convince me that this death was caused by one of these reasons specified in the policy and the constitution of the order.'

Subsequently, however, he became convinced that there was 'some evidence tending to show that prior to November 1, 1902, the decedent was a strong healthy man not afflicted with any of these diseases with which he was subsequently afflicted,' and concluded to submit the case to the jury.

The principal question litigated was this: Did the assured receive on November 1, 1902, an accidental injury, and, if so, did death result from this injury alone?

In approaching the consideration of this question it is well to bear in mind that the law places upon the plaintiff the burden of establishing two fundamental propositions: First, that there was an accidental injury; and, second, that it alone caused the death of Scott.

The evidence is overwhelmingly to the effect that prior to November, 1902, Scott was far from well; he had been reduced in salary and placed on the short run between Salamanca and Hornellsville, instead of the long one between Salamanca and Jersey City. During the seven years prior to his death he was frequently off duty on account of sickness and wrote to the chief clerk explaining the cause of his absence and the nature of his illness, as shown by certificates of physicians inclosed. Thus, from January 1 to March 1, 1900, Dr. Lattin certified that he was suffering from 'albuminuria,' which incapacitated him from attending to duty; from April 30 to May 31, 1902, Dr. Wilcox certified that he was unable to attend to his duties because of an operation for 'double hernia'; from June 27 to July 5, 1902, he was treated by Dr. Miller for 'congestion of the liver and palpitation of the heart,' and from November 4th to November 6th he was suffering from 'heart trouble,' as certified to by Dr. Bourne. Dr. Bozovsky, of Dunkirk, attended him from December 17, 1902, to December 30, 1902, and certified that his ailment was 'torpid liver and nephritis,' and the same physician certifies that the chief cause of death was 'nephritis,' the contributing cause being 'valvular heart trouble.'

Within six months prior to November 1st, therefore, Scott, who was 60 years of age, had been treated for double hernia, congestion of the liver and palpitation of the heart. In view of all this it is not surprising that July 5, 1902, he wrote his chief: 'Dr. Miller says I was pretty near a goner on June 27th. ' After November 1st there are certificates from three physicians as to Scott's maladies, but no one of them mentions an accident or the discovery of a bruise upon one of his shin bones. On November 6, 1902, Scott wrote Chief Wade: 'I was taken seriously ill Tuesday night (November 4). My heart rather failed me. ' On November 11th and 13th and on December 1st he also wrote Wade, but in none of these was there any allusion to an accident or a bruise.

Under the certificate of insurance Scott was entitled to receive 'a sum not exceeding $15.00 per week against loss of time. ' Although he was off duty for 12 weeks after November 1, 1902, he made no application for an allowance and did not mention any accident, notwithstanding the fact that he wrote to the defendant's collector paying an assessment about November 20th.

An autopsy was made February 4, 1903, and the physician who made it testified as follows:

'I examined the thorax and found both lungs in a state of congestion and engorgement, indicating pneumonia in life. The left pleura was adherent, showing that an old pleurisy had existed. The heart was hypertrophied; the left ventricle being greatly thickened. The middle valve of the aorta had a calcareous deposit at its base which seriously interfered with the closing of the valve, making a permanent heart leak. The aorta just above the valve had a patch of calcareous degeneration in it about half an inch long, and there were several other smaller patches of calcareous degeneration near it in the vessels beyond. The liver was simply engorged with bile, there being an impacted stone in the cystic duct pressing on the common duct and a suppurating gall bladder. Both kidneys showed degenerative processes, the capsules peeling readily, and an abscess was found in the upper part of the left kidney; constricted and encysted appendix. Other abdominal organs normal. From what I saw of the lungs and their condition, pneumonia had been present at the time of death. Pneumonia of both lungs of the degree observed, together with the

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