Order of United Commercial Travelers v. Sevier

• Decision Date: 14 July 1941
• Docket Number: No. 11955.,11955.
• Citation: Order of United Commercial Travelers v. Sevier, 121 F.2d 650 (8th Cir. 1941)
• Parties: ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. SEVIER.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F.2d 650 (1941)

ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v.SEVIER.

No. 11955.

Circuit Court of Appeals, Eighth Circuit.

July 14, 1941.

Sam Bushman, of Jefferson City, Mo. (E. W. Dillon, of Columbus, Ohio, and Irwin, Bushman & Buchanan, of Jefferson City, Mo., on the brief), for appellant.

H. P. Lauf, of Jefferson City, Mo. (L. H. Cook and John O. Bond, both of Jefferson City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action to recover upon a membership certificate issued by appellant, the Order of United Commercial Travelers of America, to Nike G. Sevier, wherein appellee, Margaret Sevier, was named as beneficiary.The parties will be referred to as they were designated in the lower court.The certificate contained provision that the constitution and by-laws of the association should be a part of the contract.It was an accident certificate providing for the payment of benefits in the event of accidental death only.The answer admitted the issuance of the certificate, but denied that the death of the member was by accidental death within the meaning of the constitution of the association.The action was tried to the court without a jury, and the court, among other things, found that:

"9.The Insured's death was from an infection introduced into, by and through the wound in the intestine; that the wound in the intestine, being approximately the size of a large nail, a lead pencil or small finger of the hand and was visible to the unaided eye only after the opening of the abdomen by surgical operation.

"10.The wound or rupture of the intestine was not visible to the unaided eye, absent the operation and opening of the abdomen.

"11.The accidental injury of the Insured was the proximate, immediate and primary cause of his death."

The court concluded that the death of the insured resulted from an infection introduced into, by or through an open wound in the intestine, within the meaning of the constitutional provision because "the constitutional provision does not require that the open wound be in an external part of the body."

Defendant seeks reversal on the ground that the court has not properly construed the provisions of the insurance contract.It contends that the wound found in the intestine after the abdomen had been opened by surgical operation was not an open wound visible to the unaided eye within the terms of the exception in the constitution made a part of the insurance contract.

The facts are not seriously in dispute.The pertinent part of the constitution of the association contains the following provision: "That the Association should pay the Beneficiary the sum of Five Thousand Dollars should death result from bodily injury effected solely through external, violent and accidental means, and independent of all other causes, but that the society should not be liable for any death by infection, whether caused by accidental means or not, unless the infection be introduced into, by or through an open wound, which open wound must be caused by external, violent and accidental means and be visible to the unaided eye."

The circumstances attending the injury to and death of the insured, Nike G. Sevier, may be stated as follows: On the morning of November 24, 1939, he was driving in his automobile, accompanied by a nephew, from Jefferson City, Missouri, to California, Missouri.At a point about midway between these places, he overtook a colored boy riding a bicycle and going in the same direction that he was traveling.In attempting to avoid striking the boy, insured swerved his car to the left and his automobile struck a concrete drain on the left hand side of the highway and overturned.The boy on the bicycle was not seriously injured.On the same day, insured complained of a pain in his abdomen, which pain apparently continued until the third day, when it became so severe that he consulted a physician at Jefferson City, Missouri.Following examination by Dr. Rambo, he was sent to a hospital.Dr. Rambo, as a witness, testified that he found insured suffering excruciating abdominal pains; that the abdomen was distended and very tender in the lower right quadrant.Later, the insured was operated upon; his abdomen was opened and pus was found in the peritoneal cavity.A mass was found in the lower abdomen, somewhat to the right side, made up of a loop of intestines and some pussy material.The ruptured intestine in that immediate area was easily separated and a hole was found in the colon, through which material had been liberated, causing the formation of of pus and peritonitis.Concerning the condition, Dr. Rambo testified::

"Well, when an injury happens to the intestinal tract, nature attempts to take care of it to protect the rest of the system.For instance, we found in this case a hole in the intestine.This man had been subjected to something that ruptured his intestine and naturally the peristalsis of the intestinal tract released the content of the intestines, and as I said, nature immediately attempts to protect herself and the quickest way is to build loops around that portion of the tract to keep it from spreading, going to other places, and in the process she throws out a binder to seal all the places to keep it from spreading and this had taken place.And since those loops had adhered and sealed about the hole it had formed a new fibrinous material to keep the pus from leaking and going to other places, that formed a mass.The mass was just a protective mechanism.This material was all new material; it was all new, nothing old there.We didn't have to do any dissecting or cutting.Just separate them; take the loops of the intestine and gently pull them apart."

Other medical evidence was to the effect that there was a mass in the abdomen of the insured, which when separated revealed a hole in the colon.The evidence showed that the insured died on December 1, 1939, of a ruptured intestine caused by an automobile accident, followed by peritonitis and by secondary pneumonia.

It is the contention of defendant that the infection although caused by accidental means was not introduced into, by or through an open wound "visible to the unaided eye," because it was not disclosed until the opening of the abdomen by surgical operation.

The parties agree that the contract, being one by a fraternal benefit society organized under the laws of the State of Ohio, should be construed according to the decisions of that state.It is also conceded, however, that the courts of Ohio have not construed the particular provision in question as applied to such facts as are here presented.Neither have the courts of Missouri construed it, and hence, we must exercise our own judgment in its construction.Mutual Benefit Health & Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856.

There can be no doubt that policies may properly require that injury may only be established by evidence of a visible contusion or wound on the exterior of the body.Mutual Life Ins. Co. v. Schenkat, 7 Cir., 62 F.2d 236.The manifest purpose of such a provision is to protect against sham claims by barring recovery for alleged injuries of which there is no physical evidence of the means alleged to have effected the bodily injuries and no proof except the insured's own assertion.Peterson v. Locomotive Engineers' Mutual Life & Accident Ins. Ass'n, 123 Minn. 505, 144 N.W. 160, 49 L.R.A.,N.S., 1022,...