New Amsterdam Cas. Co. v. Shields

• Decision Date: 15 June 1907
• Docket Number: 1,658.
• Citation: 155 F. 54
• Parties: NEW AMSTERDAM CASUALTY CO. v. SHIELDS.
• Court: U.S. Court of Appeals — Sixth Circuit

155 F. 54

NEW AMSTERDAM CASUALTY CO. v. SHIELDS.

No. 1,658.

United States Court of Appeals, Sixth Circuit.

June 15, 1907

Clarence T. Boyd, for plaintiff in error.

Walter Stokes, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit upon a policy of accident insurance issued by the New Amsterdam Casualty Company to Oliver H. Shields for the sum of $5,000, his wife, Julia M. Shields, being the beneficiary. The policy provided that in case of loss of life by accident the company would pay Julia M. Shields $5,000 and also for any surgical operation for appendicitis $100. While the policy was in force, on Thursday, September 7 1905, Mr. Shields was driving in a buggy, when a front wheel ran off and he was thrown against the dashboard, striking his abdomen. That night he complained to his wife of pain in his bowels, especially on the right side. The next day, Friday, he was at his office, and that afternoon spoke to his family physician, Dr. Wood, of the accident and of the soreness in his bowels. That night he was suddenly seized with severe cramping pains in the abdomen nausea, vomiting, high fever, and rapid pulse. Dr. Wood could not be reached, so Dr. Ewing was called over the telephone and prescribed castor oil and morphia. On Saturday his condition was worse. Dr. Wood was sent for, and upon his arrival found the patient suffering severely from pains in the abdomen; had been vomiting, temperature high, pulse rapid and irritable, abdomen distended, and his right side very tender and rigid. On Sunday morning, Dr. Douglas, a surgeon of high reputation, was called in consultation by Dr. Wood. They diagnosed the case as acute appendicitis, and that afternoon removed the patient to Dr. Douglas' infirmary. The following Tuesday, September 12th, Dr. Douglas, with the assistance of Drs. Wood and Tigert, performed an operation. This disclosed that the trouble was acute appendicitis, septic peritonitis, and locked bowel. Mr. Shields died on Thursday, September 14th.

Obviously, the question of fact in the case was whether the fall against the dashboard of the buggy caused the attack of appendicitis which brought about the death of the insured. It appears that Mr. Shields had had two attacks of appendicitis 10 or 12 years before his final one. The physicians and surgeons who attended him during his last illness all testified that he died from acute appendicitis, complicated with septic peritonitis and locked bowel, and these diseases were the direct results of the injuries he received when he fell or was thrown against the dashboard of his buggy. On the other hand, three physicians and surgeons of prominence, living in Nashville, testified as experts that the fall of Mr. Shields could not have caused the third attack of appendicitis which resulted in his death, but that the immediate cause of his death was septic peritonitis as the result of chronic recurrent appendicitis. During the trial, the plaintiff below amended her declaration so as to claim the statutory attorney fee of not exceeding 25 per cent. of the liability on the policy. The jury rendered a verdict for $6,286.86, being the face of the policy, $5,000, and the interest thereon, $186,86, a surgical bill of $100, and the attorney fee $1,000. Two questions are raised, or sought to be raised, respecting the recovery of the face of the policy. It is insisted, in the first place, that the court should have directed a verdict for the defendant on the ground that the evidence did not justify the jury in finding that the attack of appendicitis which brought about the peritonitis and locked bowel, which ended in his death, was caused solely by his fall against the dashboard of the buggy; and, in the next place, that, even if the case was properly submitted to the jury, the instructions of the court were erroneous.

We are not disposed to go into a discussion of the evidence in the case. The surgeons were naturally divided in their views. Those who attended Mr. Shields were clear in the opinion that the attack of appendicitis which terminated fatally was caused by his fall against the dashboard of the buggy, and those who were called as experts only, and gave their opinion upon a hypothetical case, were equally clear in the view that the attack of appendicitis was not caused by the fall, but that the septic peritonitis and locked bowel, which brought about his death, was occasioned by a crippled or diseased appendix, as the result of chronic recurrent appendicitis. Under the circumstances, in the conflict of testimony upon a vital point, the court submitted the matter to the jury, giving full instructions upon the law of the case. These instructions we shall now consider.

In them, the court, after directing attention to the pertinent provision of the policy, drew the distinction between a disease and a mere susceptibility to disease. The policy provides:

'Loss of life by accident as used in this policy shall be deemed to mean death from bodily injuries not intentionally inflicted by the assured, which independently of all other causes are effected solely and exclusively by external, violent and accidental means and which shall result in the death of the assured within ninety days of the event causing the injury.'

In this case it is conceded that the disease of appendicitis, with its consequences and complications, caused the death of the insured, but the real question of fact lies farther back, and is, whether the fall against the dashboard, acting independently of any other cause, produced this disease. If the insured recovered from his former attacks of this disease, so that it no longer existed in his...