White v. New York Life Ins. Co.

• Decision Date: 11 December 1944
• Docket Number: No. 10919.,10919.
• Citation: 145 F.2d 504
• Parties: WHITE v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

145 F.2d 504 (1944)

WHITE v. NEW YORK LIFE INS. CO.

No. 10919.

Circuit Court of Appeals, Fifth Circuit.

November 9, 1944.

Rehearing Denied December 11, 1944.

Horace C. Wilkinson, of Birmingham, Ala., for appellant.

Borden Burr and J. T. Stokely, both of Birmingham, Ala., for appellee.

Before SIBLEY, McCORD, and LEE, Circuit Judges.

LEE, Circuit Judge.

Appellant, as beneficiary of a life insurance policy issued by the appellee on the life of her husband, Harry L. White, seeks to recover of appellee the sum of $5,000 allegedly due in addition to the face of the policy under the double indemnity provision by which White was insured against accidental death. Suit was filed in the Circuit Court of Jefferson County, Alabama, and was by appellee removed to the United States District Court on the ground of diversity of citizenship.

The complaint alleged that the insured's death resulted directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental causes:

1. By taking an overdose of chloral and sodium bromide by mistake approximately 48 hours before his death.

2. By falling and striking his head against a dresser or the glass top thereof approximately 48 hours before his death.

At the close of appellant's case, the court below granted a motion of appellee for a directed verdict and charged the jury as requested by appellee "that you find the issue in favor of the defendant."

The sole issue is whether the court below erred in granting that motion and in giving the charge referred to.

The pertinent provisions of the policy are as follows:

"Double Indemnity: * * * Ten Thousand * * * Dollars (Double the face of this Policy) upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within ninety days after sustaining such injury, subject to all the terms and conditions contained in Section 2 hereof.

* * * * *

"Section 2 — Double Indemnity

"The provision for Double Indemnity Benefit on the first page hereof will not apply if the insured's death resulted * * * directly or indirectly from physical or mental infirmity, illness or disease of any kind."

Harry L. White died on May 3, 1940, in the Tutwiler Hotel, in Birmingham, Alabama. At the time of his death, he was 71 years of age. For some years prior to his death he had been under treatment by Dr. J. G. Vance, his personal physician.

Dr. Vance testified that about five years before Mr. White's death his health noticeably began to decline due to heart trouble, which progressively became worse until the time of his death. In September of 1939, White was in a hospital and was attended by Dr. Hirsch, a heart specialist of Birmingham. In January of 1940, he married appellant and went on a honeymoon to Florida. While there he was under medical attention. He returned from Florida to Birmingham in February of 1940, went to an infirmary, and was again attended by Dr. Hirsch, and by other physicians, some of whom treated him for kidney trouble. He left the sanitarium in the latter part of February, 1940, and established himself at the Tutwiler Hotel, where Dr. Vance again took him in charge. Dr. Vance found that he had pus in his urine and stated that while he was "able to clear up to some extent or all extent the pus, that didn't do his heart any good." White soon began to "experience periods of restlessness at night"; developed swelling of the limbs; and Dr. Vance had him consult Dr. Carter, another heart specialist. Carter's report confirmed Dr. Vance's diagnosis and confirmed Dr. Vance in his opinion that White was in a serious condition.

Dr. Vance testified that he visited White in his room the evening of Monday, April 29, 1940, and found him nervous, weak, and complaining of inability to sleep. His heart was then in a bad condition and getting worse. The doctor ordered a prescription, which was delivered in a bottle that evening.

Appellant testified that she gave White one dose out of the bottle about 9 o'clock, and that he went to sleep in about fifteen minutes. Later in the night he awoke very restless and changed from bed to bed. She went to bed between 1:30 and 2 a.m., and when she awoke, startled, between 4 and 4:30 a.m., she noticed that the glass top on the dresser had slipped half way off. She found White on the floor, unconscious, in the corner of his room. Dr. Vance was called and reached the room around 6 or 6:30 a.m., and was with him two or three times a day and at night until he died on Friday morning, May 3. No other physician attended the insured during that time.

Dr. Vance testified that when he reached White early on the morning of April 30, he had not seen him since he attended him on the evening before and did not know what had happened since the evening before, except from physical findings. He found White was unconscious, his heart condition had worsened, and he had a bump on his head so small that it required no treatment and disappeared in two days. The doctor did not know how he got the bump and attached no importance to it.

Appellant further testified that after giving White a dose of medicine from the bottle about 9 o'clock in the evening, she placed the bottle of medicine and the spoon in the medicine cabinet in the bathroom and that at that time the medicine was almost level with the top of the bottle; that when Dr. Vance arrived, following her discovery of White on the floor, about one-third of the medicine in the bottle was gone; that Dr. Vance on arrival went into the bathroom and came out with the bottle of medicine in his hand and exhibited the bottle to her and said, "Harry Mr. White has had an overdose of medicine." Appellant stated that White had a habit of taking medicine by turning the bottle up and guessing at how much he was going to take; and that White was the only person who had access to the medicine after she retired.

After White's death, Dr. Vance signed a certificate of death, which, among other things, showed the following:

"Date of death

"May 3, 1940 * * *

"Immediate cause of death.

"Degenerative Myocardial Fibrosis * * *

"I hereby certify that I attended the deceased from March 15, 1940, to May 3, 1940, that I last saw him alive on May 3, 1940, and that death occurred at 8 a.m. on the date stated above from cause given."

With reference to the statements made in the certificate, Dr. Vance testified that it was his opinion at the time that myocardial degeneration was the immediate cause of White's death; and that "I know it is a contributory cause now, and bound to be a contributory cause." He further testified that "if this bump on his head or this overdose * * * he may have taken had anything to do with his death, they all contributed together," and that "if it hadn't been for his heart trouble the others wouldn't amount to anything at all."

Dr. Vance signed proofs of death under date of May 7, 1940, which contained the following statements:

"For what disease did you treat or advise deceased prior to last illness. Myocardial degeneration.

"Give date, duration and result of each. Five years.

"10(a). What was the immediate cause of death? Myocardial fibrosis.

"How long, in your opinion, did deceased suffer from this disease? Gradual onset."

With reference to these statements he testified that, at the request of the beneficiary's attorney, he wrote out and attached to the proof of death a typewritten slip containing this summary of what information had been gathered: "Deceased took overdose of chloral and sodium bromide, approximately 48 hours before his death to make him sleep. This was a mistake. During the night sometime he was found on the floor and from position of dresser and glass top on same, it was presumed he fell and struck his head. He never regained consciousness from then on until his death."

In explanation of this statement, Dr. Vance, as a witness, said that he didn't mean that the bump on White's head was the sole cause of his death; that the immediate cause of his death was the heart trouble, and that the overdose of chloral, assuming that he took it, would not have produced death or effected death but for his heart trouble; that it would be guesswork to say that the little bump found on his head could have produced death. "Q. And you still say, as you say on the death certificate, and as you said here, and as you say now, that one of the causes of his death was his heart condition? A. Yes, sir."

We agree with the court below that under the evidence the little bump on the back of Mr. White's head at the time he was found lying on the floor unconscious, which disappeared without treatment within a day or two, hardly merits consideration. The evidence, however, would warrant the jury in finding that White took by mistake an overdose of the medicine prescribed by Dr. Vance to produce sleep in the early hours of the morning on which he was found unconscious.

The testimony shows that, on the afternoon before, Dr. Vance had ordered and there was delivered a 4-ounce bottle of chloral and bromide containing about 240 grains. Mrs. White gave White a prescribed dose of this medicine around 9 o'clock in the evening, not long after the medicine was delivered. On the following morning when Dr. Vance was called in, he found about one-third of the medicine in the bottle was gone; he estimated that about 60 to 80 grains of the two drugs was missing. When Mrs. White went to sleep around 1:30 a.m., White was very restless, unable to sleep, and moving from bed to bed. White's restlessness and inability to sleep, when considered in the light of the amount of medicine missing from the bottle and White's habit of pouring out medicine and guessing at the dose, are facts from which a jury might find that he had by mistake taken an overdose of the chloral and bromide....