New York Life Ins. Co. v. ROUFOS.

• Decision Date: 05 May 1936
• Docket Number: No. 6943.,6943.
• Citation: 83 F.2d 620
• Parties: NEW YORK LIFE INS. CO. v. ROUFOS.
• Court: U.S. Court of Appeals — Sixth Circuit

83 F.2d 620 (1936)

NEW YORK LIFE INS. CO. v. ROUFOS.

No. 6943.

Circuit Court of Appeals, Sixth Circuit.

May 5, 1936.

Thomas A. E. Weadock, of Detroit, Mich., for appellant.

C. A. Tsangadas, of Detroit, Mich., for appellee.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

The insurer disputes its liability under the double indemnity clause of an insurance policy issued upon the life of Fotoni A. Roufos, deceased, on February 27, 1922, and appeals from a judgment below on the ground that there was no substantial evidence as to the cause of death, and that the court erroneously placed upon it the burden of establishing disease as a contributing cause.

The double indemnity clause of the policy is in the usual form, imposing liability upon the insurer for:

"Double the face of this policy upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental causes * * *

"This double indemnity benefit will not apply if insured's death resulted from * * * physical or mental infirmity, or directly or indirectly from illness or disease of any kind."

The insured was at the time of his death a man of fifty, actively engaged in his hat-cleaning business. On December, 29, 1932, he had returned home at the usual hour and spent the evening visiting with his family and guests, apparently in good health and spirits. During the evening he had twice gone unassisted to the basement of his house, once to attend to his furnace and again to locate a gas leak. Some time after his guests had departed, he announced that he would attend to the furnace for the night, and left for the basement by way of the stairs which led thereto from the kitchen. A few seconds later the members of his family heard a bump, or successive bumps. He was found lying upon the basement floor at the foot of the stairs, and a physician who was summoned found a bleeding cut at the back of his head. Stethoscopic examination showed his chest condition fair, but a slow heart beat. He was given a stimulant and carried up to bed. That night he died.

A post mortem performed in the presence of three physicians, one a medical examiner for the insurer, disclosed a hemorrhage at the base of the brain and three fractures at the base of the skull. There was no diseased condition of the brain itself. The medical testimony was substantially in accord that the proximate and sole cause of death was traumatic cerebral hemorrhage resulting from a fracture of the skull. No one saw the accident, but this, of course, does not preclude reasonable inference from established facts as to how it occurred.

The insurer produced evidence showing that in 1923, some nine years before his death, Roufos had suffered a stroke while on a train in Pennsylvania; that it resulted in partial paralysis of his right side; that he was for some time confined to his bed; and that he had made claim for disability benefits under the policy. There was evidence, however, both medical and lay, that he had partly, if not wholly, recovered. For a number of years he had been actively carrying on his business, had done gardening about his home, had attended to his furnace and carried out the ashes, and had done considerable painting and varnishing in his house.

The stairway down which Roufos is claimed to have fallen consists of four steps to a platform at grade, and then of six more at a right angle to the basement. The stairway itself is unlighted, but on the basement wall at the right of the lower series of steps and on a line with the second downward step is a switch, eighteen inches above which is a shelf upon which children's toys and odds and ends were kept. The evidence is that before Roufos descended the stairway on his last visit to the basement the shelf was in order, but that after he was found in the basement the contents of the shelf were scattered over the floor, and the light was out.

It is the theory of the insurer that the fall was not accidental, but the result of the insured's physical condition, either his original paralysis or a subsequent stroke to which...