United States Fidelity & Guaranty Co. v. Blum

• Decision Date: 07 February 1921
• Docket Number: 3503.
• Citation: 270 F. 946
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BLUM.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F. 946

UNITED STATES FIDELITY & GUARANTY CO. v. BLUM.

No. 3503.

United States Court of Appeals, Ninth Circuit.

February 7, 1921

Rehearing Denied March 9, 1921. [Copyrighted Material Omitted]

Coy Burnett, of Portland, Or., and Jos. A. McCullough, of Baltimore, Md., for plaintiff in error.

Preston Thorgrimson & Turner and Lyons & Orton, all of Seattle Wash., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This is an action by the defendant in error to recover damages for the death of her husband, Samuel Blum, under a policy insuring against accident issued by the plaintiff in error. The policy covers 'loss or disability resulting from bodily injuries effected directly and independently of all other cause through external, violent and accidental means (excluding suicide, sane or insane, or any attempt thereat).'

At the close of plaintiff's case a motion for nonsuit on the part of the defendant was denied. At the close of the entire evidence the defendant demurred ore tenus to the sufficiency of the evidence to carry the case to the jury and in the alternative moved the court for a directed verdict in its favor. Both were denied by the court. The verdict was for plaintiff.

The assignments of error are three:

First, that the court erred in denying defendant's motion for nonsuit.

Second, in overruling the demurrer to the evidence.

Third, in refusing to instruct a verdict for the defendant.

All for reasons: (1) That the complaint fails to state a cause of action; (2) that there was a total failure of proof of death from accidental causes; (3) that there was a total failure of proof of any death effected directly and independently of all other causes through external, violent, and accidental means; and (4) that there was a total failure of proof of death caused in any manner covered by the provisions of the policy of insurance.

There was no demurrer to the complaint; nor were there any exceptions reserved to any instructions given by the court or any refusal of the court to give requested instructions.

The complaint simply alleges, so far as material here:

That on January 12, 1917, 'the said Samuel Blum died in the city of Seattle, county of King, state of Washington. His death was effected through external, violent, and accidental means.'

The answer denies the latter clause, and for an affirmative defense alleges: 'That the policy relied upon by the plaintiff expressly excludes from the risks assured death effected through suicide, sane or insane, or any attempt thereat, and the death of the said Blum was effected through suicide or an attempt thereat, and not otherwise.'

Thus are presented the particular issues upon which the case was tried and went to the jury.

The suggested insufficiency of the complaint is not insisted upon in the briefs; nor was it at the argument. Even if it had been, the complaint must be held to be sufficient after verdict, when all intendments operate in its support.

Nor is the demurrer to the evidence insisted upon. There is therefore but one assignment of error that calls for notice, namely, the one relating to the refusal of the court to direct a verdict for the defendant. Thus is presented but the one question whether the testimony adduced at the trial was sufficient to warrant the court in sending the case to the jury. This requires a statement of the salient facts as disclosed by the evidence.

Blum was past 40, had been in business for a number of years, and was prosperous, having acquired an estate rated at $125,000. With this he was satisfied, as it was remunerative, and he was not eager to accumulate greater wealth. He was happy and contented in his domestic relations, and was esteemed and trusted in his social and business relations. On January 1, 1919, certain of his property in Alaska was burned, news of which came to him on the 2d. This greatly depressed and worried him at the time, and he complained of loss of sleep, and that he could not get the Alaska fire out of his mind. His condition of mind improved somewhat, however, prior to January 12th, the date of his death.

As bearing upon this, and as respects his disappearance from his office when last seen therein, Laura Lawson testified, among other things, that she was a public stenographer and had a desk in Blum's office, but in a room separate from his, with a door communicating, and that she did his stenographic work; that Blum was in the office on the morning of the 12th when the witness came in about half past 9; that he asked her, as was his habit, how he looked, to which she replied, 'You look like you had a good night's sleep. ' He smiled, but remarked, 'Well, I slept sound, but I was full of dope,' or something of that order. He was worrying, and his head ached all the time from worry and nervousness. He was told not to worry, that there was nothing to worry about, and he said, 'That is all they tell me,' and wished he could see it that way. She further testified that the worry started with the fire at Valdez; that he was like anybody else when there is something on his mind, and walked forth and back, and would talk about it. He received telegrams from time to time about the fire, and when he found one thing to be all right, then he would wonder if something else was all right, and kept saying if he had been up there he would feel differently, but because he was down here naturally he imagined a whole lot was really worse than it was. He manifested his worry by walking forth and back, and putting his hand up to his head, and would say 'so much all during the day' that he could not collect his thoughts. Witness never heard him say that before the 1st of January. She saw no outward indication of any change relative to his being worried between the 2d and 12th of January, and he complained that he could not sleep. Mrs. Blum was with him in the office in the morning of the 12th, and they went out for an automobile ride. As he left he said he was going up to the house to take a nap, and would be back some time during the afternoon. He came back around half past 2 or 3 o'clock, walked into his office and came out again, and walked forth and back in the two rooms, and, probably half an hour later, said he was going to get shaved, remarking, 'We have to keep clean anyhow, no matter what happens. ' He was gone an hour, or a little longer, and came into the office again, and walked forth and back. Witness was busy at the time he went out again. As he passed her desk, he said he was going for a little walk, and would be back in a few minutes. He went out into the hall; then came back into the office. He then started pacing forth and back in both rooms, and did that for probably 10 or 15 minutes, and then went into his own office, half closing the door as he went. Very shortly, in a minute or a minute and a half, witness missed him from his office, and on going in found he had disappeared. Then it was ascertained that he had fallen from the window in the room to the sidewalk below. Witness testified that Blum showed no indication of faintness on the day that he died, but it was developed on cross-examination that he had a fainting spell in the office several days previous thereto, but was revived shortly by a stimulant. This testimony has corroboration.

The barber, Mr. Hurd, relates that Blum came into his place about 4 o'clock, took off his coat and hat, got a paper from the porter, and walked back and forth across the floor until a chair was ready for him, which was about 20 minutes. While shaving him, witness asked if he had been sick, to which he replied 'No,' but said that he had not slept for two weeks. When asked what was the matter, he said, 'That fire-- I can't get it off my mind,' and further, 'I just feel awful; I never felt this way in my life before; I feel terrible.'

Mrs Estelle L. Blum, wife of deceased, testified that their married life had always been happy, and that Blum was kindly towards every one; that he had a habit, when engaged in thinking or discussing business or otherwise, of pacing the floor, which he did at home as well as in the office. The news of the fire at Valdez came on January 2d, while they were at breakfast, and Blum went down at once to ascertain if there were further news. Witness could not recall any special time of his being dizzy, but remembered that he did complain of dizziness; that he would often want the fresh air, and when he did he would throw up the window or open the front door, and at times would go outside. He showed a worried condition during the period following the news of the fire. The news came very slowly. He worried about the insurance, or rather as to the responsibility of the companies in which he was insured. When assured of their responsibility, he was very much relieved. Then he was in doubt whether he would be allowed to continue in his mercantile business while awaiting fire adjustment, but was assured later that he would, and that worry was disposed of. Again, he worried over the uncertainty of the safety of his papers in the vault, but was relieved when he had news that they were all right. After that he still continued to be perturbed about the health of his cousin Meyer Blum, who was associated with him in business in Alaska, and that worried him somewhat up to the time of his death. The conditions in Valdez were a constant topic of their conversation. While the other things had cleared up, he continued to worry somewhat about Mr. Meyer Blum's health. He always worried about his cousin's health, both before and after the fire. After the fire he was very, very wakeful, but each night he obtained more sleep. He never had been a good sleeper, said the...