Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a judgment of the District Court entered upon the verdict of a jury in favor of the plaintiff, appellee, who was beneficiary in a life insurance policy on the life of her husband.
On April 27, 1922, Malcolm F. Lewis at Pittsburgh, Pa., made application to the Massachusetts Protective Association, defendant herein, for a policy of insurance on his life. His application was accepted, and "Premier Policy No. 347,901" was issued to him on May 1, 1922. It was kept in force by the payment of annual premiums of $45 until he died.
On June 15, 1930, while bathing at White Fish Lake in the state of Michigan, Mr. Lewis, when diving, struck his head on the bottom of the lake and broke off part of one of his upper teeth. He began immediately to have dull headaches and a disability which increased in intensity until his death on August 29, 1930. The injury produced a concussion of the brain, and the fracture of the tooth caused the dissemination of "streptococcic organisms" or germs, which were at the root of the tooth, through the body, which infected his brain, and this alone in conjunction with the injury caused his death.
After the dive, he came up spitting blood and said, "I got an awful jolt," and sat there a minute, and finally lay down on the dock for about half an hour. "He seemed to feel real bad, and was quite ill for a little while." Before the accident, he was well and quite a healthy man. Afterwards, he continually complained, tired easily, and it seemed an effort for him to work. He had planned a vacation of two weeks in the East, where his friends and relatives live, but did not take it, for he wanted to rest and lie around in the cottage at his home. Mrs. Lewis testified that after the accident "he felt tired all the time, complained of his head, and said he felt tired." His physical condition "seemed to gradually get worse. He seemed to complain more of being tired all the time. He didn't get any better so we called Dr. Mitchell. * * * He put him to bed for a day or so, and he didn't seem to get any better so he said he would call in a head specialist, and he called Dr. Blackburn. * * * He came and looked him over and prescribed for him, and he didn't get any better. All this time he had a temperature of 104, so by Saturday he was so bad the doctor said he would have to take him to the hospital." This he did on August 23, 1930, "and he got progressively worse until he died." In short, the evidence shows that he worked as best he could from the date of the accident on June 15th until August 23, 1930, when he was taken to the hospital, where he died on August 29th following.
The question is whether or not the facts of his death bring it within the terms of the insurance policy. If they do not, the court should have directed a verdict in accordance with the defendant's request, but, if they do, the request was properly denied and the judgment should be affirmed.
The policy insured Mr. Lewis "against loss resulting from (1) bodily injuries effected directly and independently of all other causes by accidental means * * * and due solely to external, violent and involuntary causes," but it did not insure against "death due to disease, whether accidental or otherwise." It also provides that: "Loss resulting wholly or in part from hernia, any strain, or from injuries not immediately disabling, shall be classified as sickness."
The defendant says that the court should have directed a verdict for it because the death was not caused solely and independently of all other causes by accidental means, and because the injury was not "immediately disabling."
The first reason is based on the fact that the physicians testified that the insured had an abscessed tooth, a tooth which had at its root streptococcic germs which the injury disseminated through the body and brain and finally produced death. It was, therefore, the defendant says, not the trauma which produced death, but the dissemination of a pre-existing disease that did it, and plaintiff, therefore, cannot recover, under the cases of National Masonic Accident Association v. Shryock, 73 F. 774 (C.C.A. 8); Hubbard v. Mutual Accident Association, 98 F. 930 (C.C.E.D. Pa.); Illinois Commercial Men's Association v. Parks (C.C.A.) 179 F. 794; Maryland Casualty Company v. Morrow, 213 F. 599, 52 L.R.A. (N.S.) 1213 (C.C.A. 3); Aetna Life Insurance Company v. Ryan, 255 F. 483, 486 (C.C.A. 2); Kerns v. Aetna Life Insurance Company, 291 F. 289 (C.C.A. 8); Ryan v. Continental Casualty Company, 47 F.2d 472, 473 (C.C.A. 5), and many others.
These cases in substance hold that, if at the time of the accident the plaintiff is suffering from a pre-existing disease or bodily infirmity, and the accident would not have caused his death if he had not had the disease or infirmity, but he died because the accident aggravated the effects of the disease or the disease aggravated the effects of the accident, he may not recover.
Every case depends upon its own facts, and the language used by the courts must be considered and construed in relation to those facts. In the case of Maryland Casualty Co. v. Morrow, supra, the insured accidentally stubbed his toe one night, and a doctor was not called for almost a month. It was then discovered that the insured had diabetes, that he had gangrene in his toe which was of a diabetic character, and that death was not effected directly and independently of all other causes than the accident, but that it was effected by two concurring causes, the accident and the pre-existing disease, and so Judge McPherson of this court held that recovery could not be had under the policy.
In the case of National Masonic Accident Association v. Shryock, supra, in addition to the injury resulting from a fall, the insured had fatty degeneration of the heart at the time of the accident, and the injury would not have ...