Norwood v. Great American Indemnity Co.

• Decision Date: 26 December 1944
• Docket Number: No. 8492.,8492.
• Citation: 146 F.2d 797
• Parties: NORWOOD v. GREAT AMERICAN INDEMNITY CO.
• Court: U.S. Court of Appeals — Third Circuit

146 F.2d 797 (1944)

NORWOOD v. GREAT AMERICAN INDEMNITY CO.

No. 8492.

Circuit Court of Appeals, Third Circuit.

Argued February 21, 1944.

Decided December 26, 1944.

Harry Reiss Axelroth, of Philadelphia, Pa. (Axelroth & Porteous, of Philadelphia, Pa., on the brief), for appellant.

D. Alexander Wieland, of Philadelphia, Pa. (Joseph J. Brown, of Philadelphia, Pa., on the brief), for appellee.

Before MARIS and JONES, Circuit Judges, and BARD, District Judge.

JONES, Circuit Judge.

The plaintiff, as the beneficiary of each of two policies of insurance on the life of her husband (the one issued by the Great American Indemnity Company, and the other by the Prudential Insurance Company of America) brought suit on the policies for the death of the insured. As the question of the insurer's liability in both cases grows out of the same set of facts, subject to the same rules of law, the two cases were tried together. A verdict was returned for the plaintiff against each of the defendants whereon judgments were entered. Only the Great American Indemnity Company has appealed.

The policy, upon which the appellant was sued, insured "against loss resulting directly and independently of all other causes from bodily injury sustained during the term of this policy and effected solely through accidental means." The policy further provided that it did not cover death caused directly or indirectly, wholly or partly, by disease or infection. In the case of the Prudential policy, the controversy revolved about a provision for double indemnity for the insured's accidental death. In each instance the question for the jury was whether the insured's death was caused by accidental means as prescribed and limited in the policies. On this issue both sides offered expert testimony and, as happens not infrequently, the opinions of the experts differed widely.

The plaintiff offered evidence to prove that the insured, who was fifty-six years of age at the time of his death, was a medical officer in the United States Navy; that he had been in active service, ashore or at sea, since the time of his marriage to the plaintiff in 1933; that he had consistently been declared fit for duty each year of his entire career as a naval officer; that he had had two minor operations, one in 1934 and the other in 1938; that he had been on active duty at the Naval Medical Supply Depot in Brooklyn, New York, from December 12, 1941, until the time of his death on January 12, 1942; that about 9:30 in the evening of the latter date, the insured, while taking a shower, fell in the bath tub thereby suffering a blow on the back of his head; and that he died about 11 p.m. that same night. The autopsy reports of the Naval Hospital were conflicting, but both the plaintiff's and the defendants' respective experts testified that edema of the brain was the principal cause of the insured's death. The plaintiff's expert was of the opinion that the edema resulted from the blow on the insured's head.

The principal matter assigned for error by the appellant is the trial court's admission, over the defendants' due objection, of a conversation had between Mrs. Norwood (the plaintiff) and her husband subsequent to his fall in the bath tub.

After relating how her husband had entered the bathroom in their apartment in New York City about 9:30 p.m. to take a shower, Mrs. Norwood testified that shortly thereafter she had heard "a terrific crash" and went immediately to the bathroom, opened the door and saw her husband in a half-sitting position trying to get out of the bath tub. She asked him "what had happened" and "He said he was trying to end his life on a piece of soap", at the same time handing her the soap. After so conversing briefly, Mrs. Norwood "withdrew from the bathroom". In about four or five minutes, the insured emerged from the bathroom dressed in his pajamas. He sat down, smoking a cigarette. While sitting there, he rubbed the back of his head. Mrs. Norwood asked him "if he had hurt himself" and "he said he had given himself an awful whack on the back of his head in a very vital spot." After retiring, the husband was unable to go to sleep and, during the next hour, there was further conversation between him and his wife as to his condition. In answer to the wife's inquiry as to whether "he thought the fall had anything to do with it", he said, "I am very much afraid that it had" and he "repeated again that he had given himself an awful whack on the back of the head in a very vital spot." He grew pale, was apprehensive, said he felt "impending disaster" and that his heart seemed to be missing a beat. About an hour and a half after the fall (around 11 o'clock), he turned over in bed, gasped and died. It will be noted that the insured's first statement after his fall came in response to his wife's interrogation and consisted only of what she termed an "amusing remark". Likewise, most of the subsequent conversation was the result of Mrs. Norwood's direct inquiries concerning her husband's condition and did not contain spontaneous utterances by him about his fall or injury.

All of the questions presented on this appeal relate to rules of evidence as to which the law of the forum controls. See Pritchard v. Norton, 106 U.S. 124, 133, 134, 1 S.Ct. 102, 27 L.Ed. 104; Restatement, Conflict of Laws (1934 Ed.) § 597. In determining such questions, a federal trial court has great latitude under Rule 43 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides, in material part, that the statute or rule, federal or state, which favors the reception of proffered evidence shall govern its admissibility.

Even under such broad leeway, it is still open to serious question whether the hearsay as to the cause and effect of the insured's injury which Mrs. Norwood related as a witness was competent as a part of the res gestae. The learned trial judge first ruled it out, upon objection, but reversed the ruling when informed that the deceased's statements were made within an hour or two of his death. The court assigned the latter fact as justifying the admission of the evidence. However, it had not been offered as an ante mortem statement. Nor were there present the circumstances necessary to qualify it as such. But, interesting as is the question of res gestae presented by this record, we think it became academic by the end of the trial.

The trial court can not be thought to have erred in refusing to grant a new trial or set aside the verdict or disturb the judgment when its refusal so to do did not appear to the court to be inconsistent with substantial justice. See Rule 61, Federal Rules of Civil Procedure. Our present inquiry, therefore, is whether the trial court erred in treating the admission of the evidence above referred to as not constituting, in effect, substantial error. The same limit to the inquiry is also laid upon us by Sec. 269 of the Judicial Code¹ which provides that "on the hearing of any appeal * * * the court shall give judgment * * * without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties."

We think that the error (assuming it to have been such) in the trial court's admission of the insured's conversation with his wife concerning his injury became unsubstantial as the trial progressed.

The record discloses that on cross-examination of the plaintiff, appellant's counsel elicited substantially the same evidence concerning the accident and its effect, e. g., the insured's complaining of a pain in his...