Standard Acc. Ins. Co. v. Van Altena

• Decision Date: 12 December 1933
• Docket Number: No. 4956.,4956.
• Citation: 67 F.2d 836
• Parties: STANDARD ACC. INS. CO. v. VAN ALTENA.
• Court: U.S. Court of Appeals — Seventh Circuit

67 F.2d 836 (1933)

STANDARD ACC. INS. CO. v. VAN ALTENA.

No. 4956.

Circuit Court of Appeals, Seventh Circuit.

December 12, 1933.

M. U. Hayden, of Detroit, Mich., and Howard A. Hartman, of Milwaukee, Wis., for appellant.

Harold W. Connell, of Milwaukee, Wis., for appellee.

Before ALSCHULER, SPARKS, and FITZHENRY, Circuit Judges.

ALSCHULER, Circuit Judge.

The action was upon a policy of accident insurance issued in 1912 by appellant, indemnifying appellee's husband "against disability or death effected directly, exclusively and independently of all other causes from accidental bodily injuries, through external and violent means, except when self-inflicted while sane or insane * * *." The verdict and judgment were for appellee, the beneficiary of the policy, for its full face with interest.

The complaint charged that the insured came to his death January 23, 1932, by bodily injuries through external and violent means, and independently of all other causes, by asphyxiation from carbon monoxide gas while taking his automobile out of his garage. The answer denied the charge. It did not specifically set up the defense of suicide save as statement of such defense might be inferred from the general denial of all the allegations of the complaint, one of which is that the death was not caused by any of the means which under the terms of the policy exempted the insurer from liability thereunder, of which means self-infliction of the fatal injuries was one.

At the close of the evidence, upon inquiry by the court, appellant's counsel stated that he wished the issue of suicide to be submitted to the jury, and this was done.

The alleged errors relied upon are: (1) That the court denied appellant's motion for a directed verdict; (2) that the charge to the jury was erroneous and harmful to appellant.

There can be no doubt that there was abundance of evidence from which the jury might rightfully have found that the death was caused by asphyxiation from carbon monoxide gas. As is commonly known, this gas is generated by the running of gas propelled automobile engines. In the forenoon deceased was found dead in his one-car garage, with the engine of his eight-cylinder Buick car running. The garage was closed save that a door connecting it with the laundry of his house was ajar about a foot. His body was found on the garage floor by his wife on her return to the house, which she had left about forty minutes before to do some shopping, leaving him in the house alone. His body presented the cherry red appearance peculiar to carbon monoxide poisoning. The evidence disclosed no other effective cause of death. In our judgment this state of the record not only warranted, but required the conclusion that carbon monoxide gas caused the death.

But, says appellant, the evidence does not exclude all other causes which may have contributed to the injury and death; and if such contributing causes there were, the contract precludes recovery.

If we may conjure up all the various conditions which might have contributed to the injury and death, and defeat recovery because each and all were not anticipated and affirmatively excluded by the evidence, such policies would fall far short of their evidently intended scope and value. If a definite accidental cause of a fatal injury appears, it is not the law that every possibility of a contributing cause must be affirmatively excluded by the evidence before liability on such a contract can be fixed. In the absence of proof of such other contributing cause, the rights under the contract must be determined as though no such contributing cause existed.

But appellant contends that a contributing cause does appear in the fact that the deceased had been suffering from the effects of a very recent surgical operation, and that his resultant condition manifested a contributing cause but for which his death would not have resulted. It is urged that, in all probability, after setting the engine in motion he fainted because of his physical weakness resulting from the operation, and that while he was in this condition the engine continued to run and generated the gas which caused his death.

If, after starting the engine, he fainted, not as a result of the gas but from other causes, and so met his death, doubtless there would be no liability under the policy. But the difficulty with this theory is in the want of evidence to support it. The nearest approach that the record affords is the testimony of some expert witnesses that he might have fainted. It requires no expert to sustain such a proposition. Of course he might have fainted — or have had a heart attack, or an apoplectic stroke, or paralysis, or vertigo, or any one or more of scores of possible disabling contributing conditions.

If the record suggests even the possibility of any such conditions, it tends also to negative them. It appears deceased was sixty-three years old and in active business life until attacked a few months before by a throat affection which proved to be cancer of the larynx; that he was treated at a hospital and the cancer removed about two months preceding the death, and a tube for breathing inserted in his trachea just above the sternum, the tube being still there at the time of his death. It was testified that the cancer was completely eradicated, and that his speedy recovery was well assured; and that in all other respects his health was excellent, without any indication of heart trouble or ailments other than the throat affliction.

But assuming that it was incumbent upon appellee affirmatively to negative all possible contributing causes (which we do not hold), this evidence of his general good health, so immediately preceding his death, would at least raise a fact question for the...