New York Life Ins. Co. v. Doerksen, 1049.

• Decision Date: 14 January 1935
• Docket Number: No. 1049.,1049.
• Citation: 75 F.2d 96
• Parties: NEW YORK LIFE INS. CO. v. DOERKSEN.
• Court: U.S. Court of Appeals — Tenth Circuit

75 F.2d 96 (1935)

NEW YORK LIFE INS. CO. v. DOERKSEN.

No. 1049.

Circuit Court of Appeals, Tenth Circuit.

January 14, 1935.

J. S. Simmons, of Hutchinson, Kan. (Alva L. Fenn, Herbert E. Ramsey, and Stuart Simmons, all of Hutchinson, Kan., and Louis H. Cooke, of New York City, on the brief), for appellant.

Roy C. Davis, of Hutchinson, Kan. (A. C. Malloy, Warren H. White, and Frank S. Hodge, all of Hutchinson, Kan., on the brief), for appellee.

Before LEWIS, McDERMOTT, and BRATTON, Circuit Judges.

McDERMOTT, Circuit Judge.

On the first appeal of this case, 64 F. (2d) 240, we reserved the question of the sufficiency of the evidence to support the verdict, for the reason therein stated. It now becomes necessary to decide that question.

The policy provides for the double indemnity herein sued for if "the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause. * * * This Double Indemnity will not apply if the Insured's death resulted * * * from physical or mental infirmity; or directly or indirectly from illness or disease of any kind." In her petition, plaintiff alleged that the assured, for some reason unknown, lost control of his automobile, which plunged into a ditch and so crushed and bruised his forehead and other parts of the body as to cause his death.

The facts are outlined in our first opinion. In order to recover, there must be substantial proof (1) that the car ran off the road as the result of some untoward incident and not because of a disease of the heart, and (2) that his death resulted from injury received in the accident and not from the pre-existing heart disease.

If the proof left either question in the realm of speculation, the verdict cannot stand. It is not necessary that plaintiff's evidence be uncontradicted, nor that the evidence most favorable to her contention carry conviction beyond a reasonable doubt; but if such evidence left the question so open that a conclusion of nonliability is as reasonable and plausible as the conclusion of liability, then the verdict rests on surmise and must be set aside. The Supreme Court of the United States has steadfastly adhered to this rule in a long line of cases¹ commencing with Patton v. Texas & Pac. R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 277, 45 L. Ed. 361, where the rule is stated that "it is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion."

Atchison, T. & S. F. Ry. Co. v. Toops, 281 U. S. 351, 354, 355, 357, 50 S. Ct. 281, 282, 74 L. Ed. 896, arose out of a violent death where there were no eyewitnesses; the jury found that the death resulted from defendant's negligence, and two lower courts approved. But the circumstances surrounding the accident left the question of the cause of death in the realm of surmise, for the death might as reasonably have resulted from other causes as from defendant's negligence. The judgment was reversed, the Supreme Court saying in part:

"The jury may not be permitted to speculate as to its cause, and the case must be withdrawn from its consideration, unless there is evidence from which the inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer. Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367, 371, 38 S. Ct. 535, 62 L. Ed. 1167; St. Louis-San Francisco Ry. Co. v. Mills, 271 U. S. 344, 347, 46 S. Ct. 520, 70 L. Ed. 979; C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; New York Central Railroad Co. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562. * * * What actually took place can only be surmised. Whether he was run down on the track by the first car, or he attempted unsuccessfully to board the train on one side or the other or succeeded, and in either case finally came to his death by falling under or between the moving cars is a matter of guesswork. * * * If allowed to sustain the verdict, it would remove trial by jury from the realm of probability, based on evidence, to that of surmise and conjecture."

In addition to the authorities cited in the Toops Case, see Looney v. Metropolitan R. Co., 200 U. S. 480, 26 S. Ct. 303, 50 L. Ed. 564; St. Louis, etc., Ry. Co. v. McWhirter, 229 U. S. 265, 33 S. Ct. 858, 57 L. Ed. 1179; Southern Ry. Co. v. Moore, 284 U. S. 581, 52 S. Ct. 38, 76 L. Ed. 503; Order of United Comm. Travelers v. Greer (C. C. A. 10) 43 F.(2d) 499.

Plaintiff's theory is that by reason of some untoward incident not disclosed, assured's car left the road and struck a signpost with such force as to throw his head against the steering post, resulting in a brain injury which caused his death. Defendant's theory is that a heart stroke caused assured to lose control of the car, and that he died of heart failure; that the head injury, if there was one, was negligible.

The uncontradicted facts are these: The assured left Dodge City about nine o'clock on the morning of January 16th, to go to Ensign, about twenty miles southwest of Dodge City, in his automobile. He was 44 years old, in apparent good health, and was alone in the car. Before reaching Ensign, he turned around and started back to Dodge City. About ten-thirty A. M., his car left a straight, dry, level, smooth road, ran along a shallow ditch for twenty or thirty feet, struck and splintered a signpost and stopped. The assured was in the driver's seat, perspiring freely although the window next him was partly open, breathing heavily, slumped over with his head resting on the side of the car. His hat was in the back seat, his vest and collar pulled open. No marks of an injury were observed. He died about two hours later, and neither the doctor who was called nor the nurse who wiped his forehead with a towel every fifteen or twenty minutes until he died, observed any wound on his head. Plaintiff's son saw no cut on the head but "it seems to me I noticed an abrasion going up across his head over his eye." The undertaker noticed an indenture and abrasion on the forehead.

One Milloway was a witness to the accident. He testified that he was in a car overtaking that of assured when he saw it wabbling in the road; that when it went into the ditch it was going seven to nine miles an hour. Plaintiff and her son testify that before the trial this witness told them assured's car was going twenty miles an hour, but do not fix this at the time the car went into the ditch. Assuming that this discredits Milloway's estimate of speed, one of plaintiff's witnesses who arrived just after the accident and who made a careful examination of the surroundings, testified that "the car was evidently going at a rather low rate of speed," as the physical facts bear out. There is no dispute that the car swerved before going into the ditch, and no evidence of a blow-out, faulty mechanism, or other reason for the accident. Drowsiness of the driver at this hour of a January morning, with a window partly open, is not probable.

There was an autopsy which conclusively demonstrated, as stated in our first opinion, that the assured had a badly diseased heart, although doubtless he did not know it.

We may assume, for present purposes, that the facts are consistent with plaintiff's theory, although we confess to grave doubts that the impact of this slowly moving car against the signpost could throw the head of a healthy driver forward against the steering post with such force as to kill him, particularly since a well man would have braced himself against such impact from the moment the car left the road. Since a car in good mechanical condition does not ordinarily leave a level highway in broad daylight, if driven by one in full possession of his faculties, a jury might well conclude from these facts that the accident was caused by some untoward incident, such as a wasp or a bee, the lighting of a cigar or the sudden appearance of a calf or chicken in the road, distracting the attention of the driver.

But it is not enough that under the facts liability might exist; if a different conclusion may as reasonably be drawn from the facts, then the jury may not guess as between equally probable causes. To say that a conclusion other than an accidental cause not contributed to by disease, is as reasonable a conclusion from the facts as the contrary, is to understate the case. For when the assured left Dodge City he was afflicted with a serious heart disease, one which plaintiff's doctors testified might cause him to faint if the heart was subjected to extreme exertion. A doctor called by the defendant testified to that which is a matter of common knowledge, that "anger, strain, fear, excitement would increase the duty upon the heart and the heart in that condition might fail." If it did fail, there would be a struggle for breath — and the assured's vest and collar were pulled open and his hat in the back seat, and he was perspiring heavily, on a day in midwinter. If his heart failed, the car would wabble in the road, and it did. Every condition found by the attending physician tallies exactly with heart failure. Some of the lay witnesses disagree as to the color of his skin — whether it was blue or ashen. But the blue or cyanotic color of the lips and finger nails noticed by the attending physician comes from a lack of oxygen in the blood following labored lung action, and it is not disputed that...