Pope v. Prudential Ins. Co. of America

• Decision Date: 10 November 1928
• Docket Number: No. 4937.,4937.
• Citation: 29 F.2d 185
• Parties: POPE v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. Court of Appeals — Sixth Circuit

29 F.2d 185 (1928)

POPE v. PRUDENTIAL INS. CO. OF AMERICA.

No. 4937.

Circuit Court of Appeals, Sixth Circuit.

November 10, 1928.

Robert Black, of Cincinnati, Ohio (H. C. Bolsinger, of Cincinnati, Ohio, on the brief), for plaintiff in error.

Wm. Marshall Bullitt, of Louisville, Ky. (R. Lee Blackwell and Bruce & Bullitt, all of Louisville, Ky., on the brief), for defendant in error.

Before DENISON, MACK, and MOORMAN, Circuit Judges.

DENISON, Circuit Judge.

The plaintiff below brings error, complaining that the trial court directed a verdict against her. She was the beneficiary in a policy upon her husband's life, issued by the defendant. The policy provided that, in the event of his death, she should receive $20,000, and double that amount if his death were the result, "directly and independently of all other causes, of bodily injuries effected solely through external violence and accidental causes," but not if the death resulted "directly or indirectly from disease in any form." The ordinary liability was paid. The double liability was contested, resulting in this action.

Mr. Pope was found to be suffering from a stone in the kidney; an operation for the removal of this stone was thought advisable and was agreed upon; and he died during the operation and as its incidental result. It was the common and expected technique of this operation that a very deep and large incision would be made from the front or side into the abdomen and down to the kidney, which would then be lifted up to or toward the top of the wound, where it would be accessible for the remainder of the work; that the stone would then be located and removed and the kidney would then be let down to and replaced in its former seat. This organ is connected with the abdominal wall by a cluster of ligaments and blood vessels, known as the pedicle; the relation of the kidney and the pedicle being comparable to that of an apple and its stem. When it is first lifted, clamps are slipped underneath it and put upon the artery and the vein so as to minimize the loss of blood. The length of the pedicle is different in different individuals, and characteristically in a man of Mr. Pope's physical type — "short coupled" — it is short. When a patient is also stout or fleshy, as he was, the difficulty of lifting the organ to an operable position, and against the resistance of the pedicle, is emphasized, and there is, typically, substantial danger that, in spite of care and skill, the pedicle will be ruptured by the lifting strain put upon it. This is probably what happened in this case. The pedicle was found to be extremely short and the stone in an unusually inaccessible place, but its removal was completed, the kidney replaced, and the pedicle clamps removed. There was an immediate severe hemorrhage from the vein, it could not be stopped, and the patient died.

It was urged in the trial court on behalf of plaintiff, and is argued here, that in putting the clamps upon the vein there may have been an inadvertent movement leading to an accidental puncture, and that this would be an "accidental cause" within the meaning of the policy. It is not impossible that the death did occur from this cause; but this could be nothing more than a surmise, there is no substantial evidence to support it; if that were the only tenable theory of recovery, the case would be one where the jury is not allowed to speculate upon the existence of a basis for its finding. Hence, we do not further consider this theory.

It was also urged below and is argued here on behalf of defendant that the fatal result was, in part, due to the diseased and feeble condition of the blood vessels and/or to the shock inherent in the expected operation, and that hence, even if the rupture of the vein was an "accidental cause" of death, it was not the sole cause, and there can be no recovery. Whether these conditions clearly appeared, or whether the claims thereof presented only questions for the jury, we need not consider, in view of the result which we reach upon the more clearly controlling issue. For the same reason, we pass by without notice the contention that the operation and its incidents were the indirect results of the disease indicated by the existence of the stone. We therefore, for the purposes of this opinion, assume that the death was the result solely of the rupture of an undiseased vein, and because the pedicle turned out to be so short and the necessary lift so great that the break could not, with all due precaution and skill, be avoided. It is undisputed that this element of danger is inherent in every such operation; that the surgeon fully understood this; and that he did only what he intended to do and with the technique which he intended to use.

There is no occasion to deny that a death, so resulting, may be in a very proper sense an accidental death; but there is obviously a substantial distinction between an accidental result and the result of an accidental cause. We think it not only to be the natural meaning of the words, as they would be understood by the...