Standard Acc. Ins. Co. v. Rossi

• Citation: 35 F.2d 667
• Decision Date: 04 November 1929
• Docket Number: No. 8506.,8506.
• Parties: STANDARD ACC. INS. CO. v. ROSSI.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

35 F.2d 667 (1929)

STANDARD ACC. INS. CO. v. ROSSI.

No. 8506.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1929.

Merritt U. Hayden, of Detroit, Mich. (Price Shofner, of Little Rock, Ark., on the brief), for appellant.

Ed. B. Dillon and S. S. Jefferies, both of Little Rock, Ark., for appellee.

Before KENYON and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This suit is brought by appellee as the widow of Joseph Rossi, deceased, who held an accident policy in appellant company. By this policy appellant insured the deceased against loss resulting from bodily injuries effected directly, exclusively, and independently of all other causes through accidental means. It is conceded that on the 20th day of February, 1927, the automobile of Joseph Rossi, in which he was riding, collided with another automobile, with the result that Mr. Rossi's car was overturned. No witness saw Mr. Rossi while in his car prior to the collision, and none of them saw him alight from the car. He was seen, however, standing on the walk or curb at or about the point where the accident occurred. The testimony tends to establish that Mr. Rossi was taken to his home, but was not continuously confined to bed, nor to the house, until March 5, 1927. In the meantime, he was driven down town, on at least three occasions, where he transacted some business, and attended police court in connection with a trial growing out of this same collision. On the latter date he took to his bed, where he remained until March 11th, on which day he died. The testimony produced by appellee, and embodied in a hypothetical question propounded to expert witnesses, was to the effect that two days before his death his color began to change to a dark blue, which continued, and that shortly before death his breathing became labored and he suffered a severe hemorrhage, in which there was expelled from his mouth a large quantity of bluish, lumpy, coagulated, and stringy blood. Before the accident, his complexion was ruddy, and his general physical appearance was that of health. The testimony of plaintiff's experts was to the effect that death was occasioned by thrombosis or embolus, resulting from trauma. As one witness put it:

"* * * It is quite possible that the injury that he had, appearing to be struck over the liver, that that may have produced a blood clot, which got into the circulation and a piece of that blood clot was washed off and got into the portal circulation, I mean the circulation of the lungs, and dammed up the blood so, a spot in the lungs, and as a result of that he had this typical black blood hemorrhage from his mouth and accompanying symptoms. I would say that was the most probable explanation of his death."

It is conceded that some years prior to the accident Mr. Rossi had had what one of the expert witnesses for plaintiff describes "as an extensive tubercular process." He says:

"If you ask me if the lung was diseased, that was perfectly obvious.

"Q. There was danger that the disease might become active at any time? A. It might be. The old tuberculosis is always liable to become active. But a man don't die from re-inactivated tuberculosis in nineteen days. He dies in several months or several years. There is a slow process unless he dies with an acute hemorrhage, which he did."

X-ray pictures taken in November, 1926, disclosed these lesions — then apparently healed. There was a great deal of scar tissue scattered throughout the lungs, indicating that he had had a very extensive involvement of those organs. It was the contention of appellant that death was caused by this tubercular condition, aggravated and excited into renewed activity perhaps by the accident, but nevertheless the primary cause of death. In support of this contention it introduced the certificate of death, filed by the attending physician, which contained the following:

"The cause of death was as follows: Pulmonary Tuberculosis made active by accident (Car) (duration) 4 yrs. Contributory Car Accident (Secondary)."

Again, the same physician in his initial report, submitted to appellant on February 25, 1927, stated that the accident occurred because "car in which patient was riding was struck by another car and turned over." In reply to the question, "Give an accurate and complete description of the nature and extent of the injury," he replied:

"Contusion and brush burn of forehead. Contusion and sprain of right lumbar and lower chest region. Wound on right leg. Bruise on left thigh."

He also stated in answer to inquiry of whether there was any history or evidence present of pre-existing injury or disease, that deceased "had tuberculosis of right lung." He further stated that the injured person would be able to resume his usual work in three weeks, or perhaps four. Medical witnesses introduced by appellant testified that from what was brought out in evidence they could not say definitely what was the cause of death, but that from the symptoms detailed the death could have been caused either by the accident, or by something not at all related to it, to wit, tuberculosis. It was further their opinion that, if death was caused by embolus, as stated by witnesses for appellee, then an autopsy would have disclosed that fact. This view is thus expressed by Dr. Ogden, witness for appellant:

"An embolus which is a blood clot floating in the blood vessel, stops up the blood vessel in the lung, of sufficient size to cause the patient to be blue and to cause death would leave this area of the lung perfectly recognizable at an autopsy, even though the embolus itself was not there, even though the embolus had been destroyed in the process of embalming, but the area of the lung involved by the embolus would still be recognizable."

On April 8, 1927, appellant served upon appellee a request, in writing, for autopsy upon the body of Rossi, so that the cause of death might be determined. To this request appellee apparently at first consented upon advice of counsel, but a day or two later the demand was refused. The insurance contract provides that:

"The Company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law."

Witnesses for appellee deny that an autopsy would probably disclose the cause of death, and counsel for appellee contend that the Statutes of Arkansas forbid the holding of an autopsy, at least without the consent of the widow, and that, in any event, the request came too late. The funeral was held, and deceased was placed in a receiving vault, on March 14, 1927. Apparently the first notice that appellant had of the death was on March 25, 1927, when the Union Trust Company, of Little Rock, acting for appellee, asked for blanks for making proof of a death claim under the policy. It will be remembered that the first report of the accident, made by the physician in charge, indicated that the injury was not of a serious character. The demand for autopsy was made within approximately two weeks after the application for blanks for making proof, and four weeks after the death. The Arkansas statute in question is section 2723 of Crawford & Moses' Digest, 1921, to wit:

"Removal Of Body From Grave. Every person who shall remove the dead body of any human being from the grave or other place of interment, for the purpose of stealing the same, or for the purpose of dissection, or from mere wantonness, shall be deemed guilty of a misdemeanor."

The court held that the request for autopsy was not made within a reasonable time, and so instructed. Upon submission, the jury returned a verdict for appellee. In addition to the principal sum named in the policy, the court assessed damages, for failure to pay after demand made, in the sum of $900, and attorneys' fees in the further sum of $750. This action was taken under section 6155, Crawford & Moses' Digest, 1921, which provides:

"Penalties and Attorneys' Fees. In all cases where loss occurs, and the fire, life, health, or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent. damages upon the amount of such loss, together with all reasonable attorneys' fees for the prosecution and collection of said loss; said attorneys' fees to be taxed by the court where the same is heard on original action, by appeal or otherwise and to be taxed up as a part of the costs therein and collected as other costs are or may be by law collected."

The contentions of appellant are as follows:

"(1) That there was not sufficient competent evidence warranting the submission to the jury of the question whether, in accordance with the provisions of the insuring clause of the policy sued on, the death of Joseph Rossi resulted "from bodily injuries effected directly, exclusively and independently of all other causes through accidental means.

"(2) That there is a failure of evidence of compliance, by appellee, with the policy obligation to give proof of loss, or of any waiver of that provision of the policy by appellant.

"(3) That the undisputed evidence established that a seasonable demand for an autopsy upon the body of Joseph Rossi was made by appellant upon appellee, to the end that the cause of death might be determined and that such autopsy was ultimately refused by appellee, for which reason she was not entitled to recover under the policy and for which reason the Court should have directed a verdict in favor of appellant.

"(4) That the testimony of witnesses, other than appellee, with respect to exclamations of pain by Rossi following the collision was of such a character, both as to lack of materiality and as to not...