Troutman v. Mutual Life Ins. Co. of New York

• Decision Date: 10 February 1942
• Docket Number: No. 8728.,8728.
• Citation: 125 F.2d 769
• Parties: TROUTMAN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Sixth Circuit

125 F.2d 769 (1942)

TROUTMAN v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 8728.

Circuit Court of Appeals, Sixth Circuit.

February 10, 1942.

COPYRIGHT MATERIAL OMITTED

George S. Wilson, Jr., of Owensboro, Ky. (L. P. Tanner, of Calhoun, Ky., and Wilson & Wilson, of Owensboro, Ky., on the brief), for appellant.

Robt. Lee Blackwell, of Louisville, Ky. (Wm. Marshall Bullitt, Donald Q. Taylor, and Bruce & Bullitt, all of Louisville, Ky., on the brief), for appellee.

Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

The district court directed a verdict against appellant, named beneficiary in a policy of insurance issued by appellee upon the life of her deceased husband. Her action was brought to recover double indemnity to be payable "upon receipt of due proof that the insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury. * * *"

The insured had been in ill health and under the care and treatment of physicians for some seven or eight years. For several years immediately preceding his death, he had received total and permanent disability insurance benefits under the policy. In 1933, his attending physician had made a diagnosis of chronic cardiac asthma with hypertrophy.

On October 12, 1935, while driving his automobile at about 25 miles per hour, the insured met in head-on collision another automobile traveling at approximately the same rate of speed. In the impact, his chest struck the steering wheel with sufficient force to bend the wheel. A motorist, who drove up to the scene of the accident, took the insured and his wife, the appellant, to Dr. Moore, who was one of the insured's attending physicians. Upon discerning a bruise on the insured's chest, the doctor advised an X-ray examination, but subsequently received no report upon his recommendation.

The insured died on November 26, 1935, 45 days after the accident. Dr. Moore certified in writing to the appellee insurance company that, at the time of the accident, he had not considered the slight bruise on the chest of decedent to be serious; and that first-aid examination had revealed nothing which could have caused his patient's death. On the witness stand, the doctor adhered to his previously expressed opinion, qualified by the condition that he had lacked the aid to diagnosis which an X-ray examination would have afforded. He testified, further, that he could not answer correctly a propounded hypothetical question as to the cause of the insured's death, unless he had treated the man from the time of the accident to the date of his death. This he had not done having been succeeded by Dr. Westerfield as attending physician.

In testifying as an expert, Dr. Moore described asthma as a congestion of the air cells, which can cause death if the congestion is extensive enough to cause solidification of the lung. Viewing the physician's testimony in entirety, no reasonable inference may be drawn that traumatic injury independently and exclusively caused the death of the insured.

Dr. Westerfield, to whom the insured was taken by a relative a day or two after the accident, also ordered an X-ray examination. Dr. Gillim performed this service; but there is no evidence in the record as to what was revealed. Later, the insured was taken to Dr. Shocklee, an osteopath, who taped his chest. The reason for this measure, however, does not appear in the evidence. Appellant states in her brief: "Unfortunately both the doctor who made the X-Ray and who taped the chest are dead, making it impossible to secure the X-Ray for examination and interpretation or for us to secure the testimony of the doctor who taped the chest to ascertain just why it had been taped."

From lay testimony it appears that, prior to the accident, the insured was in bad health and did no regular farm work, but managed his farm and did chores such as milking cows, feeding and attending to chickens, and drawing and carrying water from a well. After the accident, he would complain that his chest hurt and would hold his hand to his side. His activities lessened and he appeared to be "in the dumps." Before the accident, he seemed to be improving in health. He drove his car for short distances. After the accident, he became gradually worse and ceased driving his automobile. His shortness of breath was observed by certain witnesses. "Breathing fast," however, was described by Dr. Moore as a symptom of asthma.

There was no other medical testimony than that given by Dr. Moore, except the testimony of Dr. Howell J. Davis, who never attended the insured; indeed, did not even know him. His testimony was purely hypothetical and was most speculative in character. His opinion testimony was to the effect that congestion of the lungs sufficient to cause death can ensue from a chest blow; that a healthy person can sustain such fatal injury; that there can be such serious congestion of lungs in a person suffering from specified ailments as might cause death independently of those ailments; that congestion could have been produced by the character of the injury he was asked to assume, even in a person suffering from no ailment.

That a verdict cannot properly stand upon testimony amounting to conjecture, based on the possibility that a thing could have happened without proof that it did happen, is the law of Kentucky. Cincinnati, N. O. & T. P. Ry. Co. v. Humphrey's Adm'r, 281 Ky. 432, 442, 136 S. W.2d 537; Louisville & N. R. R. Co. v. Mann's Adm'r, 227 Ky. 399, 13 S.W.2d 257.

Moreover, hypothetical questions put to expert witnesses must reflect the true state of facts in evidence. New York Life Insurance Co. v. Long, 211 Ky. 656, 660, 661, 277 S.W. 978. The opinion of Dr. Davis that the blow received by the insured was sufficient to cause his death was valueless, because it was based on the erroneous assumption that the insured was confined to his bed for 45 days preceding his death. It is established by the record that the insured took to his bed only the day before he died.

Holding that mere supposition that fatal disease resulted from an accident will not support a judgment in favor of the beneficiary of an accident policy, the Court of Appeals of Kentucky reversed the trial court for error in not directing a verdict in National Life & Accident Insurance Co. v. Kendall, 248 Ky. 768, 59 S.W.2d 1009.

It is well settled in Kentucky, as in this circuit and elsewhere, that a jury is not permitted to speculate upon its verdict. Bahre v. Travelers' Protective Ass'n of America, 211 Ky. 435, 439, 277 S.W. 467. Suspicion or conjecture as to the cause of the death of an insured is insufficient to constitute evidence for proper submission of a case to the jury. North American Acc. Ins. Co. v. West, 245 Ky. 316, 53 S.W.2d 692.

In the case at bar, the death certificate was signed by Dr. A. A. Westerfield. This physician certified that he attended the deceased from November...