Prudential Ins. Co. of America v. Carlson, 2387.

• Decision Date: 14 April 1942
• Docket Number: No. 2387.,2387.
• Citation: 126 F.2d 607
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. CARLSON.
• Court: U.S. Court of Appeals — Tenth Circuit

126 F.2d 607 (1942)

PRUDENTIAL INS. CO. OF AMERICA v. CARLSON.

No. 2387.

Circuit Court of Appeals, Tenth Circuit.

March 2, 1942.

Rehearing Denied April 14, 1942.

COPYRIGHT MATERIAL OMITTED

Ralph M. Jones, of Kansas City, Mo. (David F. Carson, of Kansas City, Kan., William C. Michaels, of Kansas City, Mo., J. L. Miller, of St. Louis, Mo., and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, Mo., on the brief), for appellant.

J. O. Emerson, of Kansas City, Kan. (William E. Carson, of Kansas City, Kan., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Hedwig Carlson, as beneficiary, sued the Prudential Insurance Company of America, a corporation, seeking recovery on an accident policy issued to her husband, Emil Carlson. The complaint in substance alleged that the insured's automobile collided with the guard rail of a viaduct or bridge in Kansas City, Kansas, and as a result thereof the insured, Emil Carlson, received serious bodily injuries in and about his chest and heart and suffered complete prostration and coronary occlusion, and died within ninety days of the time of such bodily injuries as a result thereof, directly and independently of all other causes. Plaintiff prayed judgment for $3,000, the amount of the policy, and a reasonable sum as attorneys' fees. The cause was removed from the state court where it was originally filed, to the District Court of the United States for the District of Kansas, where issues were joined and trial was had to the court without a jury. Judgment was entered for appellee for $3,000 and $800 attorneys' fees. Appellant has appealed.

The company is a New Jersey company. The policy provides that premiums shall be paid at the home office of the company; that payments under the policy shall be made at the home office; that notice of claims shall be given to the company at its home office, Newark, New Jersey. Appellee's position that there was no showing in the trial below that the contract was a New Jersey contract is not well taken. The policy itself was attached as an exhibit to the petition and was a part of the pleadings. In its answer to the amended complaint, appellant alleged that the policy was not to take effect until approved by the company at its home office, and that it was approved at its home office in Newark, New Jersey. Furthermore, in its requested findings of fact, appellant asked the court to find that the contract was a New Jersey contract. The contract sued upon was a New Jersey contract, and is therefore governed by the laws of New Jersey.

The policy provided payment for losses specified therein resulting directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means. It excluded from the coverage of the policy loss from accident, injury, death, or other loss caused wholly or partly by disease or bodily or mental infirmity.

The evidence upon which appellee relied to establish her right of recovery is as follows: The accident which caused the death of the insured occurred January 17, 1939. On that date insured was traveling in his automobile over the Tenth Street viaduct in Kansas City, Kansas. The car went over a 12-inch wooden curbing and ran into an iron railing adjacent to the curbing, with such force as to bend the railing and hurl the insured against the steering wheel with such force that it bruised him and caused the injuries from which he died. Prior to the accident, deceased had been a well man; he was robust for his age, and had worked at manual labor without complaint. On the evening of the accident, he arrived home about 7:30. He looked pale and weak, did not answer questions, did not eat, and soon went and lay down on the davenport. He did not sleep that evening, but groaned and turned and twisted all night. There was a red spot or discoloration across deceased's breastbone. After the accident, deceased's behavior was entirely different than before; those who worked with him said he appeared to be "all in". He was seen to sit down as if exhausted, and remain seated for twenty minutes. After the accident he was at his job with the Pullman Company, working on a window-shade of a tourist car, when he turned pale and sat down. He moved very slowly. Prior to his accident he had been a fast worker. Shortly after the accident he was seen to grab his hand over his heart while working. His fellow workers noticed that he dragged at his work with a frown on his face, his hands shook, he appeared to be a sick man. The next day after the accident he went out to sweep a light snow from the sidewalk and came right back in, "white as a sheet", and sat down holding his hand over his heart. On various occasions from then on, upon the lightest exertion, such as attempting to open a door or reaching to put a light bulb in a socket, he would be seized with pains in the heart, until the final seizure on February 6. He died within a few days thereafter. For two or three years prior to his death he had never consulted a doctor.

A post mortem examination was made of the body. It revealed that deceased died of acute thrombosis which had been present probably from a few minutes to three weeks, and in no event longer than six weeks. It also revealed that the deceased had arteriosclerosis which had existed for many years. It may be said that the medical testimony of both parties fairly established that had it not been for the arteriosclerosis, the blow which deceased suffered would not have caused the thrombus which resulted in his death. Appellant therefore contends that the undisputed evidence established that decedent's death was not caused by bodily injuries resulting solely from accidental means, but was indirectly caused by bodily disease and was therefore outside the coverage of the policy.

What constitutes death resulting directly or indirectly by disease or bodily infirmity, as that term is used and understood in accident policies of insurance, is not easy of answer.

"It is elementary that because the policy of insurance is couched in the language of the draftor of the policy, the meaning and scope, is construed strictly against the draftor and in the event of an ambiguity appearing upon its face, the ambiguity will be construed in favor of the insured." Mandles v. Guardian Life Ins. Co. of America, 10 Cir., 115 F.2d 994, 996. What we seek is the intention of the parties as established by the written contract, construed in the light of the objects and purposes sought to be accomplished by them. The New Jersey courts are committed to this doctrine of construction. In Cramer v. John Hancock Mut. Life Ins. Co., 13 A.2d 651, 657, 18 N.J.Misc. 367, the court said: "To construe these accident policies too strictly would likely thwart the general object...