Wiecking v. Phoenix Mut. Life Ins. Co.

• Decision Date: 30 November 1940
• Docket Number: No. 7343.,7343.
• Parties: WIECKING v. PHŒNIX MUT. LIFE INS. CO. OF HARTFORD, CONN.
• Court: U.S. Court of Appeals — Seventh Circuit

116 F.2d 90 (1940)

WIECKING v. PHŒNIX MUT. LIFE INS. CO. OF HARTFORD, CONN.

No. 7343.

Circuit Court of Appeals, Seventh Circuit.

November 30, 1940.

Robt. A. Adams, of Indianapolis, Ind., for appellant.

Winfield K. Denton, of Evansville, Ind., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

This action was brought to recover double indemnity benefits under two policies of insurance issued to Frederick A. Wiecking, now deceased. Appellee is the widow and beneficiary under those policies, and she claims that her husband's death was caused solely by external, violent and accidental means.

The cause was tried to a jury upon a stipulation of facts, and oral testimony. Appellant moved for a directed verdict at the conclusion of appellee's evidence, and also at the conclusion of all the evidence. These motions were overruled and a verdict was rendered for appellee. A motion for a new trial was overruled; judgment followed the verdict; and from that judgment this appeal is prosecuted.

Appellant had issued two policies of insurance to the decedent, one in 1933 and the other in 1935. Each was in the amount of $5,000, and each contained provisions calling for double the face amount upon satisfactory 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 means; and provided further that such injury was evidenced by a visible contusion or wound on the exterior of the body, except in case of drowning or of internal injury revealed by an autopsy. The double indemnity clause further provided that the company should have the right and opportunity to make an autopsy where it was not forbidden by law, and that the double indemnity benefit should not be payable if the death of the insured resulted directly or indirectly from, or was contributed to by, physical or mental infirmity or disease. Both policies were in force when the insured died.

The death occurred on a hot, sultry afternoon in July, 1936, when the temperature was 93°, the humidity 42, and the wind velocity averaged six to seven miles an hour. The insured, after playing nine holes of golf in company with three other gentlemen, collapsed on the golf course and died there within a short time. The body was taken to the clubhouse and was there examined by a physician who merely determined that he was dead. He took no history of the case, and stated that he could not have determined the cause of his death. Later he stated to the undertaker that he did not know the cause of the death, but it must have been a heart attack. Later the defendant procured a statement from this doctor that the cause of the death was coronary occlusion. This was the cause of death inserted in the proof of death which plaintiff signed. She had no direct knowledge of the cause of her husband's death, and signed the proofs on the assurance of the defendant that in so doing she would not jeopardize her claim for double indemnity benefits for death by sunstroke. No doctor saw the deceased on the day of his death until after his death, no autopsy was performed, and his body was embalmed under a pressure system.

The proof of death was dated August 2, 1936, and demand was made only for the principal liability of $5,000 under each policy. Settlement was therefore made on August 6, 1936, of the single liability under both policies. At that time the defendant would not have paid double indemnity benefits if the proofs had shown death by sun-stroke, because of the ruling in Landress v. Phoenix Insurance Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382, which held that death by sunstroke while playing golf was not caused by accidental means. Nor, under such circumstances, would it have asked for an autopsy. Plaintiff was advised of that ruling and did not institute her claim for double indemnity until after the decision of the United States Supreme Court in Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, on April 25, 1938. Subsequently she demanded double indemnity of the company, and at its request furnished further proofs showing death by sunstroke. The payment of double indemnity was refused, and this suit followed.

Up until the time of his fatal attack the insured had been in excellent health. There was substantial evidence to support the conclusion that the deceased died from sunstroke, and that his symptoms were not typical of either a heart attack or apoplexy. The principal question before us is whether, under the Indiana law, decedent's death, under the circumstances set forth, can be said to have resulted, directly or independently of all other causes, from bodily injury effected solely through external, violent and accidental means; and that such injury was evidenced by a visible contusion or wound on the exterior of the body.

The courts of the United States differ in the decision of this question. See Annotations in 17 A.L.R. 1197; 61 A.L.R. 1197; and 90 A.L.R. 1387. However, under the ruling in Erie Ry. Co. v. Tompkins, supra, we are only concerned with the decision of the question by the courts of Indiana. The Indiana case having the most direct bearing on the question is that of Elsey v. Fidelity & Casualty Co., 187 Ind. 447, 120 N.E. 42, L.R.A.1918F, 646, which involved a claim arising out of a sunstroke. Claimant was insured under a policy...