Shanberg v. Fidelity & Cas. Co.

• Decision Date: 20 December 1905
• Citation: 143 F. 651
• Court: U.S. District Court — Western District of Missouri
• Parties: SHANBERG v. FIDELITY & CASUALTY CO.

143 F. 651

SHANBERG v. FIDELITY & CASUALTY CO.

United States Circuit Court, W.D. Missouri.

December 20, 1905

I. J Ringolsky, for plaintiff.

Harkless Crysler & Histed, for defendant.

POLLOCK District Judge (orally).

The question is, should this case be submitted to the jury? That question is answered by another. If so submitted, and a verdict is returned for the plaintiff, should the court allow such a verdict to stand? In other words, should the court do a useless thing in submitting the case?

This is an action on a contract which the defendant in this case made with the deceased. An indemnity contract, in which it agreed if death should result within a certain period of time, and that death resulted directly and independent of all other causes, from bodily injury sustained from extraordinary violent and accidental means, that it would pay the indemnity. Being a limited contract the consideration for the making of it of course is low and recognized to be so. What are the undisputed, and we may say, indisputable facts in this case? Because there are certain facts in the case that can never be changed, and facts are stubborn things. The deceased, under the testimony, was engaged in carrying one end of a door about 81 inches long and 41 inches wide, the entire door weighing about 86 pounds. They were carrying it along a level street. When they had proceeded about 800 yards, under the testimony, as I recall it, the deceased looked at the other party carrying the door and said, 'I am tired,' fell down and suddenly expired. An autopsy was made, and it was found the right auricle of the heart was ruptured; such a rupture as would and did in this case cause immediate death. The autopsy further disclosed that the heart was very badly diseased, and that deceased was suffering from what is known as fatty degeneration of the heart. In such case shall the defendant under the evidence pay, according to the terms of the contract? I apprehend what the contract means is this: While the deceased was diseased, yet, if he met with such an accident, such an unforeseen condition of affairs or chance happening that his death was caused independently of the condition of the heart, the company may be maintained liable. For instance, suppose this man's heart was ready to burst, and in such condition that the carrying of this door would burst it, yet from the way he had lived, guarding himself from peril, because of the known fact, if he had been struck by lightning, been kicked by a horse, had received some unforeseen blow, or had taken into his system a poisonous fluid, or substance by accident without knowledge that it was that kind of thing, or had he inhaled poisonous and noxious gas by accident, then in such case the condition of the heart would have nothing to do with the death.

On the other hand, suppose no accident happened. Suppose he walked rapidly upstairs and death had resulted, as it might have done in the light of the diseased condition of this man's heart. The parties contracted in contemplation of the deceased going along with the usual avocations of life. The company indemnify only against accidents. They do not issue an accident policy obligating themselves to pay in case of death, no matter how resulting, but resulting in certain ways specified in the policy. Now suppose one of us held an indemnity contract, such as the one in this case made by the defendant. And suppose, being in a hurry, we should rush up stairs to see some one, or suppose we should walk rapidly up hill,...