Appeal from the United States District Court for the District of Vermont.
Befoer L. HAND, AUGUSTUS N. HAND, and C. E. CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff's husband, Frank L. Bush, died on August 16, 1939, under the following circumstances: He had been fishing in the ocean in a boat or dory, and upon returning about 8:30 A.M. slipped in getting out of the dory and fell backwards on some rocks. He immediately complained of being a little dizzy and was helped to his tent by his companions, a matter of about a hundred feet. He then lay down and rested for a time. Around 11 A.M. on the same day, after his rest, he drove his automobile about a mile into town on an errand, being accompanied by one Fontaine, who testified for the plaintiff at the trial. The decedent was about fifty-six years of age and appeared to be robust and in good health at the time of the accident. Fontaine left the car to do the errand, and when he returned about ten minutes later found Bush slumped over the wheel of his automobile and dead.
Dr. Kinghorn, who performed an autopsy, testified that he opened up the heart and found it nearly full of post-mortem blood clots. On little further scrutiny he found an antemortem clot approximately an inch or an inch and a half long. He said that the cause of death was an embolism of the right auricle, that the clot was due to chronic cystitis, that is an inflammation of the bladder, which he found very hard and small, showing that it had been inflamed for a long time. He explained that as a natural result little pieces would break off the inflamed surface which might pass of with the urine or might be picked up by the vessels. If they were picked up by the venous vessels they would have to enter the vena cava, because that was the only way out, and would thus get into the heart. The blood clot he said caused death; that it moved because of the fall.
Dr. Cook, who participated in the autopsy land saw the clot removed from the right side of the heart, testified that it was "not what I think of as a post-mortem clot. That is, it is a very firmly organized clot and retained its shape with teasing". He also testified that the clot, lodged where it was, caused the insured's death, and that it being lodged in the heart, connected with the fall, would pre-suppose some injury or infection in the vessels of the legs or pelvis or abdomen, that clots might be present in the veins around such a diseased bladder, and that a fall or violence suffered, as explained to have been suffered by the insured, might have the effect in connection with this clot of dislodging it, thereby causing an embolism of this character. Under cross-examination he testified that the clot was of some age and made the following answer to this question:
"Q. So that an accident, if any, occurring not more than three or four hours prior to the time you first saw the body could not, in your opinion, have been the sole cause of the clot, as you have described it, being where you described it?
"A. Perhaps the cause of it being where it is described and not the cause of the clot forming. I don't mean to hedge."
The effect of the testimony seems to have been that the decedent was a man apparently strong, active and in good health, but who because of a condition of chronic cystitis, which was not known to himself or his friends, developed a blood clot which through the jar occasioned by the fall was set loose, moved into the right auricle of the heart and caused death.
The plaintiff is the beneficiary under an accidental death benefit certificate issued by the defendant on the life of her husband, Frank L. Bush, which entitled him to "the benefit under this certificate for death due to accidental means alone, and independent of all other causes." It fixed such benefit at $6,300 which by a rider upon the policy was reduced from $6,300 to $5,000. The constitution of the defendant (which was incorporated by reference in the certificate) insured members against death "effected solely through accidental, violent and external means, herein termed the accident, which shall be occasioned by said accident alone and independent of all other causes."
At the close of the plaintiff's evidence in the action brought by her to recover on the policy, the defendant moved the court to direct a verdict in its favor on the ground that she had not made out a cause of action under the insurance contract. The motion was granted, a judgment entered for the defendant upon a verdict directed as prayed for, from which this appeal is taken.We think the direction was right and that the judgment should be affirmed.
It would seem clear that if the requirement of the policy that recovery can only be had "for death due to accidental means alone and independent of all other causes" be taken literally the presence of a large blood clot, which was moved into the auricle as a result of the jar, was a contributing cause of death and that accordingly death did not arise from "accidental means alone." It is true that there are numerous decisions that similar clauses do not prevent recovery where an insured is only subject to a congenital weakness or frailty such as a thin skull, but if we go so far as to say that a disease without which the accident would not have happened was not a contributing cause simply because it was immediately activated by the accident, the express contract of the parties becomes of no effect.
The plaintiff principally relies upon the opinion of Cardozo, Ch. J., in Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914. The policy there insured against results of bodily injuries "caused directly and independently of all other causes by accidental means" and provided that it was not to cover death "caused wholly or partly by disease or bodily or mental infirmity or medical or surgical treatment therefor."
"The insured, while lifting a milk can into an ice box, slipped and fell, the can striking him on the abdomen and causing such pain that he was unable to get up. A surgeon, opening the abdomen, found a perforation at the junction of the stomach and the duodenum, through which the contents of the stomach escaped into the peritoneum, causing peritonitis and, later, death. At the point of perforation there had been a duodenal ulcer, about the size of a pea. The existence of this ulcer was unknown to the insured, and, were it not for the blow, would have had no effect upon his health, for it was dormant and not progressive, or so the triers of the facts might find. ...