Pope v. Lincoln Nat. Life Ins. Co.

• Decision Date: 18 April 1939
• Docket Number: No. 11069,11070.,11069
• Citation: 103 F.2d 265
• Parties: POPE v. LINCOLN NAT. LIFE INS. CO. SAME v. COLUMBIAN NAT. LIFE INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

103 F.2d 265 (1939)

POPE v. LINCOLN NAT. LIFE INS. CO.

SAME v. COLUMBIAN NAT. LIFE INS. CO.

Nos. 11069, 11070.

Circuit Court of Appeals, Eighth Circuit.

April 18, 1939.

J. L. London, of St. Louis, Mo. (S. C. Rogers and Leahy, Walther, Hecker and Ely, all of St. Louis, Mo., on the brief), for appellant.

James C. Jones, Jr., of St. Louis, Mo. (Lon O. Hocker, James C. Jones, Web A. Welker, and Jones, Hocker, Gladney and Grand, all of St. Louis, Mo., on the brief), for appellees.

Before STONE, WOODROUGH, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

Appellant, as beneficiary, brought an action for the death of Charles H. Pope against the Lincoln National Life Insurance Company on an accident policy. Appellant brought another action for the death of Pope against the Columbian National Life Insurance Company on two accident policies. The cases were consolidated for trial. At the close of the evidence of plaintiff, verdicts were directed and judgments entered thereon for the respective defendants. From such judgments plaintiff brings these appeals which are presented on a single record.

Each appellee contends that none of the assignments of errors is sufficient to present any issue for review here. The assignments are as follows:

"1. The District Court erred in directing a verdict against plaintiff and in favor of defendant.

"2. The District Court erred in refusing to submit the case to the jury.

"3. The District Court erred in holding that as a matter of law plaintiff was not entitled to recover.

"4. The District Court erred in holding and ruling that the death of insured was not the result of accidental means within the provisions of the policy in question."

The argument of appellees is that each of the assignments is too general. Whether an assignment of error is so general as to be insufficient depends upon the character of issue it seeks to present to the appellate court. The measure of a sufficiently specific assignment is that it clearly challenges a definite ruling or action of the trial court — such ruling being as to a matter which this Court may properly examine and determine. The sufficiency of the evidence to justify direction of a verdict at the close of the evidence of plaintiff is certainly a matter which this Court can examine and determine. Therefore, the question here is whether any of the above assignments has clearly challenged the action of the trial court in so directing each of these verdicts. It is difficult to imagine how this appellant could more clearly and definitely challenge the direction of these verdicts than she has in the above assignments. In four different forms of expression she has endeavored to draw to our attention that she claims the trial court erred in directing such verdicts. Each and all of them present but the one issue — definitely and clearly — that there was sufficient evidence to compel submission to the jury.

The pertinent provision as to the risk insured against is stated in the Lincoln policy as: "bodily injury, effected solely through external, violent and accidental means and evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning and internal injuries revealed by an autopsy)."

The provision in the Columbian policies is as follows: "bodily injuries effected directly and independently of all other causes through accidental means".

Under both of the above quoted policy provisions, the issue was whether there was sufficient evidence to justify a verdict of accidental death. Under the Lincoln policy there was the additional issue of whether the accidental means of death was "evidenced by a visible contusion or wound on the exterior of the body" or by "internal injuries revealed by an autopsy."

Viewed most favorably to the plaintiff, the fact situation shown by the testimony is as follows. Charles H. Pope, the insured, left St. Louis, alone in a La Salle sedan, the afternoon of November 3, 1934, to drive to his farm near Ironton, Missouri. Near the town of Bismarck, en route, he turned onto a road which had been recently laid out and graded but not yet surfaced with gravel. It had been raining and this road was very muddy. Other cars had used the road and there were ruts in the surface.

The evidence as to what took place upon the road is as follows: One witness saw him when he was about two hundred yards along the road. The car was stuck in the mud. "He seemed to have a terrible time, and I watched him until he got out." He "zigzagged" from there about eight hundred feet and stuck again. He had trouble there "going back and forth" but finally got out. "It looked like the car would get around every way, like he would go to back away and start it, and then he would come back again." This witness did not see Pope get out of the car — however, he was not watching constantly, being engaged at his barn. Another witness saw the car about three-fourths of a mile from Bismarck at about fifteen minutes before 5 o'clock. Before the car was in his sight he could hear it "stuck up" (this was, obviously, the first time testified to by the previous witness). When he first saw it, the car was again stuck:

"He got out of the car and walked around the car, and he got back in the car and tried it again, and I guess the first time he was there about fifteen minutes, then he got out. He ran down the road and he noticed a bad place and he stopped before he got to the place and he got out and walked ahead of the car. He looked at the place, went back to the car, stood there, and went back and looked again, and he got in the car and he got through and he got about, oh, I guess about one hundred or one hundred and fifty yards and he stuck up again, and he was there a little bit longer. I wouldn't say for sure how long. It was 20 or 25 minutes when he finally did get out and he went along. There was a piece of woods on my side and I couldn't see but I heard he was stuck up. I heard him about an hour and a half and, of course, I went ahead with my work and never paid any more attention. The last place he was there altogether an hour and a half. He might have been there longer. Sometimes the engine was running. He was racing it, and stopped a while, and would do the same thing over.

"Q. Did you see him skidding on the road? A. He was the second place where he got through.

"He went kind of over the road, didn't stay in one place. He skidded from one side to the other. I wouldn't hardly say over what length or what distance I saw him skidding, but it was a little distance, maybe from here to the door or maybe longer, I guess about 30 feet or 40, something like that. It might have been a little bit longer. I did not see the car when it was turned around facing southwest, I didn't see that.

"It was kind of cloudy, but I don't think it was raining. It had been raining the day before. I don't know what time it had stopped raining. I don't recall that.

"Dr. Pope got a piece of wood the first time. He put it under the wheel but the wood was so soft he couldn't make it and he laid it in front of the hind wheels. I saw Dr. Pope at the wheel. He got in. I saw him driving the car. At the time he was skidding back and forth, he was at the wheel. He held the wheel, trying to get out of there. The road was so bad and he skidded, he couldn't hold the wheel straight in the road. He couldn't keep the car straight on the road."

Cross-Examination.

"Q. Mr. Steffen, the last time he got hung up was what distance from where he was hung up the second time. A. Not the first time. The first time he stuck up on kind of high ground.

"Q. That is where you didn't see him? A. That was north.

"I didn't see that. The first time was right uphill. The first time I really saw him stuck up, when I saw him, that was, I guess, about, oh, about 500 yards from where that new road started from the north end. 500 yards from the north end of the road. That was not opposite my house. A little bit north. I guess, say about 50 feet north. Then he got out of there. I guess he went about 100 yards until I saw him stop again. He went about 100 yards, and it was then he got to that very bad place I was talking about; he got out to look the situation over. He walked back to his car, and walked down and looked it over again. Walked down and looked it over twice, and then started through it. He didn't stick up there. He got on through that place. After that I never saw him stuck up again. I never saw him any more after that, until he got down there. The last place where his car was found I couldn't see it from where I was."

About 7 o'clock, a third witness, who was driving his car toward Bismarck on this road, came upon the Pope car standing "almost square across the road", the front and rear ends about equal distant from the opposite sides of the road. Going up to the car, he found Pope dead — the body still warm.

"When I first saw Dr. Pope he was sitting at the steering wheel, his head back, tilted back some, his hat pushed a little bit on the back of his head, hands on the steering wheel, and he had his glasses on. His head was thrown back (demonstrating). It was about half-way back. His hat was not pushed back very much. About the way I usually wear mine. I don't remember whether his mouth was open or not. His eyes were almost closed. That was one of the ways I come to know he was dead. I noticed his eyelids were almost closed, but not entirely. I did not feel his pulse. I put my hand on his chest. I felt no heart movement.

* * * * * * *

"I decided he was dead and I saw I couldn't get my car by, so it was then that I pushed him over in the seat so I could get under the wheel. I did not push him over very much. Not enough to sit down entirely in the seat and drive the car. It was enough I could operate the car. When I pushed him over his head went over against the door and he was leaning at an angle close to about 45 degrees. I wouldn't say his head was against...