Order of the United Commercial Travelers of America v. Nicholson

• Decision Date: 16 June 1925
• Docket Number: No. 152.,152.
• Citation: 9 F.2d 7
• Parties: ORDER OF THE UNITED COMMERCIAL TRAVELERS OF AMERICA v. NICHOLSON et al.
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 7 (1925)

ORDER OF THE UNITED COMMERCIAL TRAVELERS OF AMERICA v. NICHOLSON et al.

No. 152.

Circuit Court of Appeals, Second Circuit.

June 16, 1925.

Murphy, Foertch & Alvord, of Syracuse, N. Y. (John A. Millener, of Columbus, Ohio, of counsel), for plaintiff in error.

Pellet, Fay & Rubin, of New York City (William W. Pellet, of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and HAND, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

This action was brought to recover on an insurance certificate issued by the Order of the United Commercial Travelers of America, defendant herein, to Lewis Ostrander, wherein it insured him, among other things, against loss of life as the direct and proximate result of, and caused solely and exclusively by, external, violent, and accidental means, provided such loss should occur within 180 days after the accident which caused it. The insurance was for the amount of $6,300. The certificate provided that $5,000 of this sum should be paid within 90 days from the receipt by the Supreme Executive Committee of satisfactory and final proof of death, and the remaining $1,300 was to be paid in weekly installments of $25 each, beginning 90 days from the receipt of such final proof.

Lewis Ostrander, as a member of the defendant organization at the time of his death, had paid to it all dues and assessments, and had performed all the terms and conditions of the certificate which was issued to him, and each and every obligation and duty as a member of the order which he was bound to perform he had fulfilled.

The insured died on December 23, 1922, and this action was commenced originally in the Supreme Court of Cayuga county in the state of New York, in June, 1923, and was then removed upon defendant's motion into the District Court of the United States. The trial began in that court on December 10, 1923, and a verdict was rendered on December 14, 1923, in favor of the plaintiffs in the sum of $4,330.

While the certificate insured Ostrander in the sum of $6,300, and the complaint as filed demanded that amount, it appeared that he left three children surviving him; two daughters, who were the plaintiffs in this action, and a son, who was an incompetent and not a party. At the close of the trial, and before the jury was charged, the counsel for the defendant suggested that, if the jury should find that the plaintiffs were entitled to recover, they were entitled to recover only two-thirds of $6,300, the amount for which the action was brought. And counsel for the plaintiffs then stated that he agreed that such was the case. The court instructed the jury accordingly, and charged that "your verdict will be either $4,330 for the plaintiffs, or no cause of action."

Lewis Ostrander died on December 23, 1922. If he had lived until the following March 6th he would have been 70 years of age. At the time of the accident complained of, he was living at the Salvation Army Hotel in Auburn, New York. He came into the hallway of the hotel from the street about 9 o'clock on the evening of December 14, 1922. Whether he fell before he started to ascend the stairs which led up to the office on the second floor, or fell before he started up the stairway, is not clearly established by the evidence. The fact is that he fell; that his fall was heard in the office; that he was picked up and carried to his room and the next day removed to the City Hospital, where he died on December 23, 1922. The testimony shows that no bones were broken in his fall. There were some abrasions on the left wrist and an abrasion on his right elbow. The physician who attended him stated that his death resulted from lobular pneumonia. He was asked the following question:

"Q. The question is, Can you say with reasonable certainty, based upon your experience, whether or not the pneumonia of which he died was a natural and proximate result of the fall he sustained on the 14th day of December, 1922?"

This was objected to, and the objection overruled, and the witness answered, "Yes." Then he was asked:

"Q. Now, will you please state whether or not the pneumonia which you found and which existed in Mr. Ostrander on December 21 or 22, 1922, was a natural and proximate result of the condition in which you found him on the 14th day of December, 1922?"

And over objection he was allowed to answer:

"Q. The court says you may answer the question, Doctor? A. It was, yes.

"Q. It was the natural and proximate result? A. Yes, sir."

The only other medical witness called by the plaintiffs was a lecturer on pathology at Bellevue Medical College at New York City. He had no personal knowledge of the case, and had never seen the deceased. His testimony was given as an expert. A long hypothetical question was put to him; the concluding portion of which was as follows:

"Q. Assuming that a man that is 69 years of age, in ordinary health, on the 14th day of December fell down several steps in a stairway, causing an abrasion of the elbows and forearms; * * * that he showed no evidence of arteriosclerosis in the palpable arteries beyond that which is usual to a man of his age; that during the night of December 21st he showed evidences of having pneumonia; that he died on the 23d day of December — can you, with reasonable certainty, based upon your experience, say whether or not the fall that he sustained was a competent producing cause of the pneumonia which developed on or about the 21st of December?"

He was allowed to state over objection that he could, and he was then asked and allowed over objection to answer:

"A. It is a very likely and probable result of the injuries. It is what we look for and watch for in such cases."

He stated that the older a man gets, and the more he suffers from hardening of the arteries and various other things, the less his resistance becomes to disease and the accumulation of these germs. And he further said that all persons have pneumonia germs in their systems all the time, generally speaking, and it does not require, in itself, any outside, external, or violent means to start up these in cases of lobar pneumonia but not usual in lobular.

One of the plaintiffs, Ostrander's daughter, testified that her father came to live with her in New York City some two years before his death, and that she had never noticed anything unusual in his method of walking. She never observed him when he had any dizzy spells, nor saw him fall. She said:

"I have noticed no change in his manner or method of walking during those two years that he lived with us, or the latter part of those two years, and the time that I knew him as a girl. That is the one thing I noticed."

The husband of the above witness also testified:

"I did not observe anything particular about his physical condition while he was living with us. He had a peculiar walk; rather a deliberate, easy walk, not a rapid walk. He had that manner of walk as long as I knew him, but I did not observe any signs of a particular change during the last few years."

A New York City physician, a graduate of Columbia College and of the College of Physicians and Surgeons of New York, who had studied abroad, and who was called by the defendant, testified that he was present at the autopsy performed on Ostrander's body. He positively denied that the man had had lobular pneumonia, and stated that he had lobar pneumonia, which he said was a form of pneumonia that old people are peculiarly affected by. It is a germ disease, but not one which could have been produced by germs being brought into the body from any abrasions on any exterior part of the body. "It could not be caused, accelerated, or affected in any way whatsoever by exterior abrasions." He testified that Ostrander "was in an advanced state of arteriosclerosis, on the 14th day of December, 1922. That was an old condition, a condition of long duration of years. I would put that down at 10 years about." He was asked, taking into consideration the physical condition disclosed by the autopsy, to state what in his opinion was the probable cause of his fall, if he had a fall on December 14, 1922, as was assumed. His answer was:

"I think it was accounted for by his arteriosclerosis and also by his pneumonia, either one or both.

"Q. And what condition in that man's body or brain did these diseases which you have indicated that he was suffering from on the 14th day of December, 1922, cause? A. Oh, I think that the arteriosclerosis caused vertigo, a dizziness, which could or might cause him to fall. The poisoning of the pneumonia, which was also present, might have caused a weakness from which he fell.

He added:

"The cause of this man's death, from my examination, was lobar pneumonia, complicated by arteriosclerosis, fatty degeneration of the kidney, and a chronic endocarditis, or heart disease."

The defendant also called the medical examiner of the city of New York, a physician by profession, and who conducted the autopsy on Ostrander's body. He had made some 2,200 autopsies. Testifying as to what the autopsy disclosed, he said it showed him to have been "in a state of very advanced sclerosis. All of the coats of the abdominal aorta were thickened and hardened in a solid mass from the diaphragm down to the division in the legs," and that "he had suffered from that disease from 10 to 15 years." "This man died," he testified, "with lobar pneumonia," and added that he had been suffering from that disease at least 10 days. He continued:

"Assuming that a man of the age of Mr. Ostrander sustained abrasions as a result of a fall, while going up stairs of something like 5 to 8 feet; assuming that such a fall occurred and produced these abrasions that I have described on the arms — such a fall, if one did take place, could not cause death. In my opinion, these abrasions, or such a fall, which has been assumed here, if it did occur, did not cause the death of Mr. Ostrander. From my...