New York Life Ins. Co. v. Griesedieck

• Decision Date: 31 January 1941
• Docket Number: No. 11722.,11722.
• Citation: 116 F.2d 559
• Parties: NEW YORK LIFE INS. CO. v. GRIESEDIECK.
• Court: U.S. Court of Appeals — Eighth Circuit

116 F.2d 559 (1941)

NEW YORK LIFE INS. CO. v. GRIESEDIECK.

No. 11722.

Circuit Court of Appeals, Eighth Circuit.

January 8, 1941.

Rehearing Denied January 31, 1941.

James C. Jones, Jr., of St. Louis, Mo. (James C. Jones and Lon O. Hocker, both of St. Louis, Mo., and Louis H. Cooke, of New York City, on the brief), for appellant.

William L. Mason, of St. Louis, Mo. (Vincent M. Flynn, of St. Louis, Mo., on the brief), for appellee.

Before STONE and GARDNER, Circuit Judges, and OTIS, District Judge.

GARDNER, Circuit Judge.

This suit was brought by appellant, New York Life Insurance Company, under the Federal Declaratory Judgment Act, 28 U.S. C.A. § 400, seeking a declaration of the rights and privileges of the parties under the double indemnity or accidental death clause of a policy of life insurance issued by that company upon the life of Raymond B. Griesedieck, the appellee being named as beneficiary in said policy.

The insured died July 12, 1930. Upon his death the insurance company paid to the beneficiary the amount due under the strictly life insurance provisions of the policy. The policy contained provision that an additional sum of $5,000 would be paid if insured's death should result from bodily injury effected solely and independently of all other causes through external, violent and accidental means. The policy was in full force and effect at the time of the insured's death.

The case was tried to the court without a jury and resulted in findings and conclusions in favor of the beneficiary and from the judgment entered thereon the insurance company prosecutes this appeal. It contends in substance: (1) That sunstroke or heat prostration is not effected through "accidental means" when there was no accidental, unintentional or involuntary exposure to the direct rays of the sun; (2) that sunstroke or heat prostration due to general atmospheric conditions, and not to an exposure to the direct rays of the sum, is not effected through means which are external and violent, as required by the policy; (3) that the payment of the policy being conditioned upon the furnishing of proof of loss, interest was only recoverable from the date that such proof was furnished or demand made for the payment of the policy.

The substantial question at issue is whether the insured's death from heat prostration or sunstroke was, within the meaning of the policy, caused by a bodily injury effected solely and independently of all other causes through external, violent and accidental means.

The insured was a large man, weighing about 290 or 300 pounds. About the middle or latter part of June, 1930, he began to complain of numbness in his feet, as well as in his hands, and the doctor was called June 25, 1930, after which time he remained at home. He was considerably bothered by heat from July 1, 1930, to July 12, 1930. Prior to July 7, his temperature was normal, but on July 7 he developed half a degree of temperature, while on the night of July 11 there was a sudden jump in his temperature to 104 degrees. The following morning his attending physician called about 11:00 o'clock and found that his temperature was 110 degrees. He diagnosed the trouble as heatstroke or sunstroke. The doctor and insured's wife worked over him, applying ice until about 2:30 in the afternoon and succeeded in bringing his temperature down somewhat. Insured was unconscious after the arrival of the doctor until his death, which occurred about 11:00 o'clock the night of the 12th, except for a short interval at about 2:30 in the afternoon. His skin was hot to the touch, red and very dry. Insured lived in an apartment with a southwest exposure. Describing this apartment, Mrs. Griesedieck testified: "The one on the street where the sum would beat in all afternoon."

The court found that death was a result of sunstroke. It appeared from the testimony that the temperature range in St. Louis for the month of July, 1930, was from 80 to 104 degrees. On July 11, it ranged from 84 to 104 degrees, and on July 12, from 85 to 103 degrees. On July 12, the temperature at 1:00 p. m. was 101 degrees, at 5:00 p. m. it was 100 degrees, and at 11:00 p. m. it was 90 degrees. The humidity at noon of July 12 was 37 per cent and at 7:00 p. m. on that day it was 30 per cent.

There was expert testimony to the effect that there was no difference between a sunstroke caused by exposure to the direct rays of the sun and sunstroke caused by atmospheric conditions, the witness saying that, "the origin of the heat apparently makes no difference whether it is directly from the sun or whether the patient is in extremely hot temperature with the exclusion of the sun." He testified that there may be sunstroke even though the patient may not be in the sun.

In determining the issues, the law of Missouri must be applied. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290. Conceding this to be the rule, appellant contends that there are no controlling decisions by the Supreme Court of Missouri and that we are not bound by the decisions of the intermediate appellate courts, citing Hudson v. Maryland Casualty Co., 8 Cir., 22 F.2d 791; Turner v. New York Life Ins. Co., 8 Cir., 100 F.2d 193. Since these cited cases were decided by this court, however, the Supreme Court has by controlling decisions held that the Federal court is not free to reject the state rule of law merely because it may not have received the sanction of the highest state court, and that it is the duty of the Federal court to ascertain from all available data what the state law is and apply it; that in ascertaining what the law is, the decisions of an intermediate appellate state court are not to be disregarded, "unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." West v. American Telephone & Telegraph Co., 61 S.Ct. 179, 183, 85 L. Ed. ___, decided December 9, 1940; Fidelity Union Trust Co. et al. v. Field, 61 S.Ct. 176, 85 L.Ed. ___, decided December 9, 1940; Six Companies of California et al. v. Joint Highway District No. 13 of the State of California, 61 S.Ct. 186, 85 L.Ed. ___, decided December 9, 1940; Stoner v. New York Life Ins. Co., 61 S.Ct. 336, 85 L.Ed. ___, decided December 23, 1940.

In West v. American Telephone & Telegraph Co., supra, the opinion in which was written by Mr. Justice Stone, it is said: "A state is not without law save as its highest court has declared it. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior ...