Preferred Accident Ins. Co. of New York v. Combs

• Decision Date: 14 March 1935
• Docket Number: No. 9942.,9942.
• Citation: 76 F.2d 775
• Parties: PREFERRED ACCIDENT INS. CO. OF NEW YORK v. COMBS.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F.2d 775 (1935)

PREFERRED ACCIDENT INS. CO. OF NEW YORK v. COMBS.

No. 9942.

Circuit Court of Appeals, Eighth Circuit.

March 14, 1935.

George L. De Lacy, of Omaha, Neb. (J. A. C. Kennedy and Yale C. Holland, both of Omaha, Neb., on the brief), for appellant.

William R. Patrick, of Omaha, Neb. (Seymour L. Smith, of Omaha, Neb., on the brief), for appellee.

Before STONE, Circuit Judge, and JOYCE and BELL, District Judges.

JOYCE, District Judge.

This is an action brought by the beneficiary of an accident policy issued by the appellant company to Claude R. Combs. Judgment was entered for the beneficiary. The insurance company will hereinafter be referred to as the defendant, and the beneficiary, the widow of Combs, as the plaintiff.

The policy was issued to Combs in July, 1915. By its general terms defendant insured Combs "against loss or disability as herein defined, resulting directly, independently, and exclusively of any and all other causes from Bodily Injury effected solely through Accidental Means." Specifically, the policy provided that, "if such bodily injury shall, from the date of the accident, and independently and exclusively of all other causes, * * * be the sole and direct cause" of loss of life, defendant would pay the beneficiary of the policy $5,000. There was still another provision that the insurance under the policy did not cover death, "caused directly or indirectly by disease in any form."

The parties concede the due issuance and effectiveness of the policy at the date of death of the insured, and the making of claims thereunder in due time.

On the afternoon of August 20, 1932, plaintiff and the insured drove out from their home in Omaha to the farm of a tenant, Miss Appelt. While plaintiff and Miss Appelt were conversing in the yard, Combs walked toward the barn and through a gate at the corner thereof and out of their sight to the rear of the barn. The soil on that side of the barn sloped downward at a considerable angle, and, being clay, was then soft because of a previous rain. When the insured reappered, after five or ten minutes, he was brushing dust from his clothing. He looked weary and tired. Plaintiff asked him what was the matter. "I slipped and fell" was the answer. The insured got into the automobile where he sat "kind of slumped in the seat," rubbing the back of his head with his left hand quite frequently. After about twenty minutes plaintiff and the insured went home. Combs experienced difficulty in driving and did not seem able to manipulate the accelerator properly. He could not get out of the car alone. He was put to bed immediately, and shortly thereafter lapsed into semiconsciousness. He repeatedly undertook to rub the back of his head with his left hand until his death three days later.

Shortly before the happenings at the Appelt farm, the deceased with members of his family had stopped to have a picnic supper in certain timber on land owned by him and after they had eaten Combs had had a controversy with a tenant named Karschner in regard to a certain chattel mortgage which he wanted the latter to sign. It was not denied that there was a dispute, but the testimony as to whether the deceased became excited and angry was conflicting.

There was evidence that insured was an active, alert, well developed and well nourished man, and that for some months prior to his death appeared to be in good health, although he had paid occasional visits to physicians during that time.

In the medical testimony centers the principal controversy. Dr. Kirk, for the plaintiff, said that he had treated the insured in November, 1931, for high blood pressure; that Combs' blood pressure thereafter was reduced from around 200 to around 140 to 150, the normal pressure for a man his age; that Combs showed marked improvement after the treatment in 1931; that he should live for a number of years, probably ten years, from that time; that when seen on the evening of August 20, 1932, Combs was unconscious and completely paralyzed in his right side; that the post mortem examination performed on his body disclosed a large hemorrhagic area on the left side of the mid portion of the brain and another in the posterior part of the brain; that there were two black and blue areas the size of the tip of a pencil at the back of the head; that there was a hemorrhage underneath the scalp or skin at these areas; that he believed these conditions were produced by a fall; that he believed the insured died of a brain hemorrhage caused by the application of external force; that "a fall severe enough to cause a hemorrhage in the cerebellar part of the brain, adjacent to the place of the blow, might be sufficient to cause a rupture of a blood vessel anywhere that the vessels are friable, anywhere in the brain." He testified further that the insured had arteriosclerosis or friable arteries; that arteries are friable when calcium is deposited in them and they become hard and easily broken; that the arteries of Combs' brain, heart, liver, and kidneys were sclerotic; that this end was not the common one to persons the age of the insured and afflicted with arteriosclerosis; that a brain in a sclerotic condition is in a pathological condition; that brain hemorrhages generally follow some stress or excitement; that the insured had some blood vessels that only were in the process of becoming hard; that massive hemorrhages may occur in the absence of high blood pressure; that the friable condition of the arteries is the principal factor in producing such hemorrhages; that normal arteries are soft and pliable and expand and contract as blood is pumped through them. That "arteriosclerosis is a common thing in the human family"; that it is "quite common with people in middle life"; that "old age is characterized by hardening of the blood vessels, and arteriosclerosis is a disease of middle and old age"; that "a friable condition of the arteries would render a person, so far as that particular artery is concerned, more susceptible to injury or breakage than if normal." He said further:

"Arteriosclerosis is not a particularly abnormal condition. It is a physiological condition. The technical name of the disease is arteriosclerosis, which describes vessel change that you see very commonly in individuals. * * *

"These changes usually appear with the years and are the natural result of wear and tear, and are common and natural changes. * * *

"It may be a pathological change. It is a normal physiological change. As we grow older our blood vessels normally become subject to the strain and stress of life. It is pathological in the meaning that it produces pathological results. Pathological means an abnormal condition. It means a diseased condition."

Dr. Russum testified for the defendant and made reference to the discovery at the autopsy of the large hemorrhage at the left side of the brain of the insured which he felt was the "immediate cause of death." He spoke also of the two small abrasions at the back of the head. He testified that in the body and the heart he found "the usual changes of arteriosclerosis" or hardening of the arteries; that the arteries of the insured were correctly characterized as friable, which meant weakened or easily broken; that "arteriosclerosis is a pathological condition, a disease"; that Combs suffered from a general arteriosclerosis; that in his opinion Combs died of a spontaneous massive hemorrhage, or one "which comes on without any injury" and without any apparent inciting cause, being due only to the giving way of a weakened artery; that experience "shows that that type of hemorrhage is not due to a blow or trauma"; that Combs' arteriosclerosis was a "moderately advanced disease"; that "arteriosclerosis is a common condition in elderly persons"; that "most people who live to reach middle life, have it in some degree"; that "arteriosclerosis, in and of itself, can very properly be called a disease and is so regarded by the leading medical authorities"; that in his opinion any traumatic injury suffered by Combs came after the hemorrhage which caused his death; that the insured's arteries were not in "the extreme advanced type of sclerosis, as those of a man of eighty would be"; that they were, rather, "moderately advanced."

The contentions of defendant may be summed up as follows: (I) That the evidence of an accidental fall, or of a fall at all, depended largely upon the statement made by the insured on returning to the automobile that he had slipped and fallen, and that such statement by him was improperly admitted over objection; (II) that if there was enough evidence to show a fall it was not sufficiently shown that the fall had been of accidental origin but that it was caused by a small hemorrhage brought on by excitement caused by the controversy with Karschner shortly before; (III) that it was conclusively shown that the death had not resulted exclusively through external and accidental means but that it had been caused in whole or part by a diseased condition of the arteries; (IV) that in any view of the situation the court had improperly charged the jury in telling them that the sclerotic condition "may or may not have contributed to the death of the deceased."

In addition to these four issues it is urged that the court erred in overruling the motion for a new trial, but such character of issue is not open to review in this court.

I. The objection to the introduction of the statement that "I slipped and fell" or "I had a fall" is attacked on the ground that it is hearsay evidence and supported on the basis that it is part of the res gestÊ.

In Chesapeake & Ohio Ry. Co. v. Mears (C. C. A. 4) 64 F.(2d) 291, 292, certiorari denied 293 U. S. 557, 55 S. Ct. 69, 79 L. Ed. ___, October 8, 1934, the court approved Professor Wigmore's requisites for the admission of such testimony under an exception to the hearsay rule, Wigmore on Evidence (2d Ed.) ßß 1747 to 1750, saying: "To render...