United States Fidelity & Guaranty Co. v. Blake

• Decision Date: 08 January 1923
• Docket Number: 3890.
• Citation: 285 F. 449
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BLAKE.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F. 449

UNITED STATES FIDELITY & GUARANTY CO. v. BLAKE.

No. 3890.

United States Court of Appeals, Ninth Circuit.

January 8, 1923

Rehearing Denied February 19, 1923.

The answer denied that the death of the insured resulted directly and independently of all other causes, from accidental bodily injuries received by him in accidentally falling through the window, and denied that he accidentally fell through the window, and alleged that the insured, on the date of his death and for several days prior thereto, had been seriously ill from pneumonia and was confined to his bed under the care of a physician, and that his body and mind were weakened from the disease, and that against the advice of his physician he got up from his bed, and, by reason of said sickness being weakened in body and mind, he jumped or fell from the window of his room.

It was shown in evidence that the sill of the window through which the insured fell was 21 1/2 inches from the floor; that the window was hinged at the top and swung outward from the bottom; that the bed occupied by the insured was about 2 feet from the window.

For the plaintiff in error, the physician who was in attendance upon the insured testified that the insured, on the morning of his death, being quiet in bed, remarked that he thought it was about time to get out and try his legs, that he had a number of things on his mind, and he had to arrange for a certain conference, and felt that he must get himself in shape to be present; whereupon the physician told him it was not time to try his legs, that he was approaching the crisis of his disease, and that at such a time there was a great deal of weakness, particularly of the heart muscle; that the thing to do was to take care of the heart muscle. Said the witness 'When he said he wanted to try his legs, he sat up in bed and made an effort to remove the covers. I took the covers and put them up to his neck, covering his arms, and put him back in bed. Then I had my hand on his wrist underneath the bed covers, apparently taking his pulse, but meaning to hold onto him at that time. And as I talked to him in that strain as to recognizing my authority, where I would perhaps recognize his in a matter that concerned his profession, he said: 'I think you are right and we should give every consideration to your opinion.' Then he went along for a number of minutes talking in that strain, apparently perfectly quiet, so much so that I relaxed my vigilance perhaps, and just simply had my hand on his pulse. Then he would, from apparently being sane enough to realize the force of my argument, suddenly make a remark that I recall distinctly, 'Well, isn't it fine that we are on the same boat together; it is nice to meet you on this boat;' and then he would recur again to his previous statement that he felt he should recognize my authority and give it every consideration; and then suddenly, without any warning at all the first thing I knew was that these bed covers were over my head, and by the time that I had disengaged myself from the bed covers all that I saw was the nurse hanging onto him and he head down out of the window. I couldn't see his head any more, but just his buttocks going through the window. I thought she grabbed him by the leg, but it was so quick; it was a flash, and he was gone.'

The physician further testified that he was sitting on a chair on the opposite side of the bed from the window and that the nurse was standing between the bed and the window, that the insured was actively delirious that morning and was in a very weak condition due to his sickness, and that he would probably have fallen had he stepped anywhere on the floor of the room, that the window was between 20 and 24 inches from the bed, that in his opinion the insured was so delirious that day that he did not know what he was doing, with the exception that he showed one moment of apparent lucidity during the 15 minutes that the physician was there, and that it would have been possible, considering the height of the window and the fact that it swung outward from the bottom, for the insured to have lost his balance and 'headed out of the window.'

On behalf of the plaintiff in error, the nurse testified that the insured began to be delirious on January 10th, and was delirious on the 11th and on the 12th, that on the morning of the 12th it was worse than it had been, that he was very restless, and she was trying to keep him covered, and he would throw the covers off. 'I would replace them, and that would irritate him, and in that connection he said he was getting madder and madder. After the doctor came, he said he wanted to get out of bed and try his legs. He said to the doctor, 'I want to see how strong I am, and if I am able to stand up,' * * * There was a space between the north wall and the bed, 19 inches or 2 feet wide. I could walk back of there very comfortably. I was standing there. I thought I was looking at Mr. Blake. I saw the bedclothes go over, or off the bed rather. I didn't know they had gone over Dr Strietmann's head, but I knew they went to that side of the bed, and I realized he might go out of the window, and I looked and he was half way out of the window. I seized him by his left arm to pull him back, but he was overbalanced. The heavier part of his...