New York Life Ins. Co. v. Doerksen

• Decision Date: 28 March 1933
• Docket Number: No. 735.,735.
• Citation: 64 F.2d 240
• Parties: NEW YORK LIFE INS. CO. v. DOERKSEN.
• Court: U.S. Court of Appeals — Tenth Circuit

64 F.2d 240 (1933)

NEW YORK LIFE INS. CO. v. DOERKSEN.

No. 735.

Circuit Court of Appeals, Tenth Circuit.

March 28, 1933.

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 and Warren H. White, both of Hutchinson, Kan., on the brief), for appellee.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

Elizabeth J. Doerksen brought this action against the Insurance Company to recover upon a double indemnity provision of a policy of life insurance issued by it on the life of John A. Doerksen. The material portions of such provision read as follows:

"New York Life Insurance Company agrees to pay to Elizabeth J., wife of the Insured, Beneficiary, * * * 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 cause, and that such death occurred within sixty days after sustaining such injury.

"This Double Indemnity Benefit 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."

The insured was a traveling salesman. On January 16, 1931, he was driving in a Studebaker eight sedan in an easterly direction in South Dodge, Kansas, at a speed of less than eighteen miles an hour. After weaving from one side of the road to the other several times, the car ran into a ditch, varying in depth from two to three feet, on the south side of the road. After entering the ditch, the car traveled about 35 feet and stopped. The right side of the car struck and splintered a sign post. The front bumper was broken off at the point of attachment on the left side. The left cowl light was broken and there were some dents in the splash board and the left fender.

Certain persons heard the crash, went to the car, and found the insured unconscious, with his head resting against the side of the car. His breathing was slow and labored, and his pulse was almost imperceptible. He was perspiring freely from his forehead. Two doctors were called. Stimulants were given and artificial respiration applied. Insured died about two hours later without having regained consciousness.

There was a mark over the left eye about a quarter of an inch in width and an inch and a quarter in length. There was a mark over the right eye about half an inch wide and two inches long. The skin was broken at the point of injury over the left eye, but not over the right eye.

An autopsy disclosed arteriosclerosis and enlargement of the heart. The walls of the left coronary artery were hardened and thickened. Medical experts for the Insurance Company testified that the opening in this artery was only from one-fourth to one-fifth of its normal size. An enlarged photograph of a cross-section of the heart and the opening in the left coronary artery clearly supported this testimony. Medical experts for the plaintiff testified that the opening in this artery was approximately one-half of its normal size. The walls of the left ventricle were thickened. The muscle in the apex of the left ventricle had ceased functioning and had been replaced by fibrous tissue. The wounds over the eyes were superficial. There was no injury to the periosteum of the skull underneath them. An examination of the brain failed to disclose any injury to the brain tissue.

Medical experts for the plaintiff, over objection of the Insurance Company, testified that in their opinion the death of the insured had resulted from concussion of the brain caused by the blows on the head. Medical experts for the Insurance Company testified that in their opinion the death of insured had been caused by a heart attack due to the failure of the coronary artery to supply sufficient blood to the left ventricle.

At the close of the evidence the Insurance Company moved for a directed verdict in its favor. This motion was overruled. There was a verdict and judgment for the plaintiff. Thereafter, the court added attorney's fees and costs to the judgment. The Insurance Company has appealed.

Where the matter under inquiry is one on which certain persons by reason of training, observation, or experience possess expert knowledge which will be of aid to the jury in reaching a correct solution of the issues and is therefore properly the subject of expert testimony, it is no objection that the opinion elicited from the expert is on an issue or point to be decided by the jury. United States Smelting Co. v. Parry (C. C. A. 8) 166 F. 407; Chicago, R. I. & P. Ry. Co. v. Hale (C. C. A. 8) 176 F. 71; Western Coal & Mining Co. v. Berberich (C. C. A. 8) 94 F. 329; Eastern Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477.

A medical expert, after stating the facts, or assuming the facts upon which his opinion is founded in case the question is hypothetical, may give his opinion as to the cause of death. National Life & Accident Co. v. Singleton, 193 Ala. 84, 69 So. 80; Foley v. Pioneer Min. & Mfg. Co., 144 Ala. 178, 40 So. 273; Eggler v. People, 56 N. Y. 642; Hartford Acc. & Ind. Co. v. Industrial Comm., 38 Ariz. 307, 299 P. 1026, 1028. We are of the opinion that the court did not err in admitting the testimony of plaintiff's experts as to the cause of death.

In its charge to the jury the court, after instructing as to the terms of the above quoted double indemnity provision and the limitation on the coverage thereunder, charged the jury as follows:

"You are instructed that the term `disease' or `bodily infirmity' as used in a policy of insurance such as the one sued on in this case, means some ailment or disorder of an established or settled character or some physical disturbance to which John A. Doerksen was subject. If you find that he experienced an attack at the time of his injury which was new or unusual with him, arising from some sudden or unexpected derangement of the system, though it produced unconsciousness, it would not be a disease or bodily infirmity within the meaning of the insurance policy and would not exempt the insurance company from liability in this action, and in that case the plaintiff should recover." (Italics ours.)

It will be noted that the last sentence of the...