Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
Although we feel constrained to reverse the judgment of the learned District Court, we are fully aware of the vexing character of the question presented to it. We think it a pity that neither counsel, if we are to judge from their briefs, seem to have been conscious of the illuminating opinion of the Circuit Court of Appeals for the Eighth Circuit reported sub nomine, Preferred Accident Ins. Co. of New York v. Combs, 76 F.2d 775. We believe that the presentation of that opinion to the learned District Judge would have been of as much assistance to him as it has been to us. The facts raising the problem which has puzzled us and our judicial brethren are of common and sad occurrence. This is borne out by the all too numerous reported cases. We found the decision we have just cited particularly helpful.
The decedent, sales manager of Madeira Hill & Company, and a man of sixty years, spent the evening before his death at his office with his assistant on matters concerned with the 77B reorganization of his employing company. On his way home, at 1:30 in the morning, his car was heard to strike a car parked on the side of the road, damaging it to the extent of fifty-eight dollars. He did not get out, but continued on his way home. At 9:45 the same morning, Mr. Young called on the owner of the other car at the Philadelphia Country Club and discussed the accident with him. He went from there to his own garage on Broad Street to see about repairs to his own car (renewal of the right front fender and replacement of the hub cap) and then returned home. HE was in great pain when he arrived at home and when his hastily summoned family physician arrived, he was dead.
The plaintiff-appellee alone offered medical testimony. She called three doctors, the family physician who prepared and filed the death certificate, a surgeon employed by counsel to perform an autopsy, and a heart specialist. They agreed that a condition known medically as atheroma had resulted in a deposit of calcium (lime salts) on the wall of the anterior coronary artery and that its interior diameter (lumen) had been correspondingly narrowed (1 mm.). They said further that a blow postulated by a bruise on decedent's chest had acted on the friable artery walls in such a way as to fatally occlude the narrowed lumen by a clot or thrombosis.
In the view we take of the case it is not necessary for us to concern ourselves with, or comment upon, the respective attorneys' efforts to put their own words of art in the mouths of their medical brethren. Plaintiff-appellee's expert, very fairly as we thought, summed the matter up by saying:
"Q. On the evidence we have here; but in your opinion, or your theory is that that blow upon the chest combined with the condition of the coronary arteries of the heart brought about Mr. Young's death? A. Yes, I think the blow on the chest and the condition of the artery were both factors." Record, p. 138
"Q. I didn't say precipitating factor, I say combined to cause it. For instance, let me ask you this, the blow upon the chest that you have talked about without the heart condition would not have caused death, would it. A. I would - I think not." Record, p. 137
By the same token, it is unnecessary, fortunately, for us to consider the medical theory propounded. An examination of some medical text books does give the impression that the narrowing of the orifices of the coronary arteries is followed by nutritive impairment of the cardiac muscle, fatty degenerative changes, and then, and not until then, anginal attacks, Allbutt, Diseases of the Arteries, p. 17; Fishberg, Hypertension and Nephritis, p. 198.
We cannot give our approval to the language used by the trial judge in charging the jury. He seemed under the impression that the participles, precipitating and predisposing, had been used by the defendant insurance company to define its liability. He accordingly prescribed them for the guidance of the jury. The fact is that the clause of obligation is the one found in the majority of the so-called double indemnity accident policies and the adverbs used are directly, indirectly, independently and solely. They have no analogy to the medical terms lifted by the learned trial judge from the mouth of the heart specialist called by the plaintiff-appellee. In stressing them in his commendable effort to enlighten the jury in their solution of the perplexing problem presented, we think he committed error. We cannot fit the use of these particular participles to any one of the three theories expressed in the controlling authorities. So finding, it is unnecessary for us to declare a preference. As an appellate court whose services may again be sought, we think it useful to go beyond the salutary rule of limited decision in three respects. Any further consideration of this case should concern itself, first, with the selection of the soundest of the legal theories hereafter adverted to, second, a proper interpretation of the word disease as applied to the physical condition of the insured, and third, the causal relation between the accident and the death.
The judge speaking for the court in the case referred to at the beginning of our opinion, commences the appropriate part of his decision with the following paragraph: "The difficult question presented on this appeal arises out of the question whether or not the insured's sclerotic condition as a matter of law deprived plaintiff of a right to recover under the policy in the absence of evidence that Combs suffered an accident which would have caused his death in spite of that condition. It is a question, indeed, with respect to which the decisions of courts have not been uniform. Proximate cause, remote cause, reasonable interpretation, intention of the parties, have been included in the terms that have been considered in treating the subject. This inharmonious state of the authorities has been judicially recognized". Preferred Accident Ins. Co. of New York v. Combs, 8 Cir., 76 F.2d 775, 779. The lack of harmony of which he speaks has divided the cases, like Gaul, into three principal divisions.
The slight weight of authority holds that as a matter of law where the accident aggravates the disease, or the disease aggravates the consequences of the accident, there can be no recovery. Under this view there could be a recovery, where the disease contributes to the injury or death, only if the accidental means is so violent or far reaching that it would have brought about the same result as a natural consequence, without the aid of the disease, but possibly at a later time. A directly contrary view is expressed by those cases permitting recovery as a matter of law on a showing that the disease alone would not have caused the result at the time it did occur, although the result of death is hastened thereby. Some courts refuse to follow either of these extremes but take a middle position. They borrow from the law of negligence and leave it to the jury to decide whether the disease or the accident is the proximate cause of injury or death. In so doing they sprinkle their opinions freely with such participles and adjectives as producing, predominating, efficient, passive and remote.
As we are expressing no preference, we do not intend to encumber this opinion with the actual citations. They can be found cited and discussed in number equal to the leaves of Vallambrosa in four excellent law review notes, Insurance - Preindisposition as a Contributing Factor under an Accident Policy, 26 Illinois Law Review 344; Insurance - Accident - Disease Excepted from Liability, 25 Michigan Law Review 467; Insurance - Accidental Injury and Pre-existing Disease Concurring in Causing Death, 25 Michigan Law Review 803; Insurance - Accident Insurance - Death by Injury Acting on Pre-existing Disease or Latent Weakness as Constituting ...