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9 F.(2d) 7

was overruled, and a verdict was returned upon which point it is unnecessary to pass, for plaintiff in the sum of $3,676.50. Plain- it was cured by the remittitur entered, which tiff entered a remittitur of $1,129.43, and a was for the amount recovered on this part new trial was refused as to the Illinois Cen- of the shipment. tral and granted as to the Mobile & Ohio Railroad.

The theory of the defense was that there was no unreasonable delay, considering the congestion of traffic, and also that plaintiff had compromised the claim for $4,147.88 before the action was commenced. There are 37 assignments of error. Error is assigned to the overruling of the demurrers to the complaint, and to the refusal of the court to direct a verdict and to give a number of special charges which it would be useless to set out in full, all of which may be considered together. [1] The rule is well settled that, where the carrier is notified in advance that circumstances require prompt delivery, special damages may be recovered by the shipper for unreasonable delay. Hutchinson on Carriers (3d Ed.) par. 1367. Plaintiff abandoned his claim as to 13 cars, and there was evidence before the jury tending to prove the material allegations of the third count as to the remainder. The judge charged the jury clearly and fairly on the issues raised and the law applicable to the case, and no exception was taken to the general charge.

[2] The only ground of demurrer that might have been considered by the court was that each bill of lading evidenced a separate contract, and on this it was contended that each of them should have been the subject of a separate count. There was no merit in this contention. The demurrers were properly overruled, and it was not error to deny the request for a directed verdict, nor to refuse to give the special charges requested, as they were either covered by the general charge or inapplicable to the facts shown. [3] There was also evidence before the jury tending to show that, in the course of the correspondence between the plaintiff and defendants, plaintiff was advised that the coal being shipped for export would probably be confiscated, owing to the necessities of the Illinois Central Railroad, caused by a strike in the Illinois coal field, but that bunker coal would not be confiscated. Plaintiff had chartered the steamship. West Cressy to transport the cargo of coal to Holland, but conceived the idea of having some of the coal consigned to the steamship Lakeville as bunker coal, in the hope that it would be delivered promptly, which hope proved to be in vain. Error is assigned to the admission of evidence tending to prove the unreasonable delay of these 4 cars. If it was error to admit this evidence,

[4] Error is assigned to the admission of certain testimony tending to show that a reasonable time for the delivery of coal from the points in Kentucky where shipped to Mobile would be four or five days-six days at the most. The witnesses who so testified were experienced railroad men, and no objection was made to their competency; the ground of objection being that the testimony was irrelevant and opinion evidence. It was not error to admit this testimony under the circumstances of the case. [5] Error is also assigned to the granting of the motion for a new trial on behalf of the Mobile & Ohio Railroad, while overruling the motion as to the Illinois Central. The granting or refusing of a new trial is within the sound discretion of the court, and error cannot be predicated thereon. If the Illinois Central has any rights against its codefendant, they are certainly not impaired by this action of the court, and it cannot complain of said action as between itself and plaintiff. We do not find any reversible error in the record.

Affirmed.

ORDER OF THE UNITED COMMERCIAL TRAVELERS OF AMERICA V. NICHOLSON et al.

(Circuit Court of Appeals, Second Circuit. June 16, 1925.)

No. 152.

1. Insurance 718-Benefit certificate, constitution, by-laws, articles of incorporation, and member's application held contract.

Benefit certificate in fraternal corporation, its constitution, by-laws, articles of incorporation, and member's application for insurance poration by which rights of parties were determined.

constituted contract between member and cor

2. Insurance 817(3)-Burden on plaintiffs to prove by preponderance of evidence that death resulted solely from accident not contributed to by disease.

Under fraternal benefit contract, insuring against death by accidental means independent of other causes, and not contributed to by disease, burden was on plaintiffs to prove by preponderance of evidence that member's death resulted solely from accident, not contributed to by disease in any degree.

3. Insurance 787-Instruction that arteriosclerosis was not disease within fraternal certificate held error.

In action on benefit certificate insuring against death caused solely by accidental means

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8. Trial 255(1)-Mere failure to Instruct in absence of request is not ordinarily error. Mere failure to instruct in absence of request is not ordinarily error.

9. Insurance 819(4)-Proof held not to sustain burden on beneficiaries of proving that death was not contributed to by disease.

Proof that fall caused shock which caused

lobular pneumonia, and that later caused death, held not to sustain burden on beneficiaries of

proving that death of member of fraternal benefit corporation was caused by accident not

contributed to by disease.

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bus in that state. It is organized as a fraternal beneficial order for the purpose of issuing certificates of membership of insurance against accidents, and death caused by accidental means, to the persons holding a certificate of membership.

The plaintiffs are the daughters of Lewis Ostrander, deceased, and he was at the time of his death a member of the defendant corporation. They have brought this action to recover on an insurance certificate issued by the defendant to their father, and upon which at the time of his death all assessments had been paid.

It appears that Lewis Ostrander died on December 23, 1922, and the complaint alleged that his death was the direct and proximate result of and caused solely by external, violent, and accidental means, and was not the result or caused by any of the exemptions set forth in the certificate of insurance.

The jury returned a verdict in favor of the plaintiffs in the sum of $4,330, and judgment for that amount was entered on January 26, 1924. A motion to set aside the verdict was made and denied. Thereupon a writ of error was sued out.

Murphy, Foertch & Alvord, of Syracuse, N. Y. (John A. Millener, of Columbus, Ohio, of counsel), for plaintiff in error.

Pellet, Fay & Rubin, of New York City (William W. Pellet, of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and HAND, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above). This action was brought to recover on an insurance certificate issued

by the Order of the United Commercial Travelers of America, defendant herein, to Lewis Ostrander, wherein it insured him, among other things, against loss of life as the direct and proximate result of, and caused solely and exclusively by, external, violent, and accidental means, provided such loss should occur within 180 days after the accident which caused

it. The insurance was for the amount of

$6,300. The certificate provided that $5,000 of this sum should be paid within 90 days from the receipt by the Supreme Executive Committee of satisfactory and final proof of death, and the remaining $1,300 was to be paid in weekly installments of $25 each, beginning 90 days from the receipt of such final proof.

Lewis Ostrander, as a member of the defendant organization at the time of his death, had paid to it all dues and assessments, and

9 F.(2d) 7

had performed all the terms and conditions of the certificate which was issued to him, and each and every obligation and duty as a member of the order which he was bound to perform he had fulfilled.

The insured died on December 23, 1922, and this action was commenced originally in the Supreme Court of Cayuga county in the state of New York, in June, 1923, and was then removed upon defendant's motion into the District Court of the United States. The trial began in that court on December 10, 1923, and a verdict was rendered on December 14, 1923, in favor of the plaintiffs in the sum of $4,330.

While the certificate insured Ostrander in the sum of $6,300, and the complaint as filed demanded that amount, it appeared that he left three children surviving him; two daughters, who were the plaintiffs in this action, and a son, who was an incompetent and not a party. At the close of the trial, and before the jury was charged, the counsel for the defendant suggested that, if the jury should find that the plaintiffs were entitled to recover, they were entitled to recover only two-thirds of $6,300, the amount for which the action was brought. And counsel for the plaintiffs then stated that he agreed that such was the case. The court instructed the jury accordingly, and charged that "your verdict will be either $4,330 for the plaintiffs, or no cause of action."

Lewis Ostrander died on December 23, 1922. If he had lived until the following March 6th he would have been 70 years of age. At the time of the accident complained of, he was living at the Salvation Army Hotel in Auburn, New York. He came into the hallway of the hotel from the street about 9 o'clock on the evening of December 14, 1922. Whether he fell before he started to ascend the stairs which led up to the office on the second floor, or fell before he started up the stairway, is not clearly established by the evidence. The fact is that he fell; that his fall was heard in the office; that he was picked up and carried to his room and the next day removed to the City Hospital, where he died on December 23, 1922. The testimony shows that no bones were broken in his fall. There were some abrasions on the left wrist and an abrasion on his right elbow. The physician who attended him stated that his death resulted from lobular pneumonia. He was asked the following question:

"Q. The question is, Can you say with reasonable certainty, based upon your experience, whether or not the pneumonia of which he died was a natural and proximate

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result of the fall he sustained on the 14th day of December, 1922?”

This was objected to, and the objection overruled, and the witness answered, "Yes." Then he was asked:

"Q. Now, will you please state whether or not the pneumonia which you found and which existed in Mr. Ostrander on December 21 or 22, 1922, was a natural and proximate result of the condition in which you found him on the 14th day of December, 1922?" And over objection he was allowed to an

swer:

"Q. The court says you may answer the question, Doctor? A. It was, yes.

"Q. It was the natural and proximate result? A. Yes, sir."

The only other medical witness called by the plaintiffs was a lecturer on pathology at Bellevue Medical College at New York City. He had no personal knowledge of the case, and had never seen the deceased. His testimony was given as an expert. A long hypothetical question was put to him; the concluding portion of which was as follows:

"Q. Assuming that a man that is 69 years of age, in ordinary health, on the 14th day of December fell down several steps in a stairway, causing an abrasion of the elbows and forearms; that he showed no evi

dence of arteriosclerosis in the palpable arteries beyond that which is usual to a man of his age; that during the night of December 21st he showed evidences of having pneumonia; that he died on the 23d day of December-can you, with reasonable certainty, based upon your experience, say whether or not the fall that he sustained was a competent producing cause of the pneumonia which developed on or about the 21st of December?"

He was allowed to state over objection that he could, and he was then asked and allowed over objection to answer:

"A. It is a very likely and probable result of the injuries. It is what we look for and watch for in such cases.'

He stated that the older a man gets, and the more he suffers from hardening of the arteries and various other things, the less his resistance becomes to disease and the accumulation of these germs. And he further said that all persons have pneumonia germs in their systems all the time, generally speaking, and it does not require, in itself, any outside, external, or violent means to start up these in cases of lobar pneumonia but not usual in lobular.

One of the plaintiffs, Ostrander's daugh ter, testified that her father came to live with

her in New York City some two years before his death, and that she had never noticed anything unusual in his method of walking. She never observed him when he had any dizzy spells, nor saw him fall. She said:

"I have noticed no change in his manner or method of walking during those two years that he lived with us, or the latter part of those two years, and the time that I knew him as a girl. That is the one thing I noticed."

The husband of the above witness also

testified:

"I did not observe anything particular about his physical condition while he was living with us. He had a peculiar walk; rather a deliberate, easy walk, not a rapid walk.

He had that manner of walk as long as I

knew him, but I did not observe any signs of a particular change during the last few years."

A New York City physician, a graduate of Columbia College and of the College of Physicians and Surgeons of New York, who had studied abroad, and who was called by the defendant, testified that he was present at the autopsy performed on Ostrander's body. He positively denied that the man had had lobular pneumonia, and stated that he had lobar pneumonia, which he said was a form of pneumonia that old people are peculiarly affected by. It is a germ disease, but not one which could have been produced by germs being brought into the body from any abrasions on any exterior part of the body. "It could not be caused, accelerated, or affected in any way whatsoever by exterior abrasions." He testified that Ostrander "was in an advanced state of arteriosclerosis, on the 14th day of December, 1922. That was an old condition, a condition of long duration of years. I would put that down at 10 years about." He was asked, taking into consideration the physical condition disclosed by the autopsy, to state what in his opinion was the probable cause of his fall, if he had a fall on December 14, 1922, as was assumed. His

answer was:

"I think it was accounted for by his arteriosclerosis and also by his pneumonia, either one or both.

"Q. And what condition in that man's body or brain did these diseases which you have indicated that he was suffering from on the 14th day of December, 1922, cause? A. Oh, I think that the arteriosclerosis caused vertigo, a dizziness, which could or might cause him to fall. The poisoning of the pneumonia, which was also present, might have caused a weakness from which he fell.

He added:

"The cause of this man's death, from my examination, was lobar pneumonia, complicated by arteriosclerosis, fatty degeneration of the kidney, and a chronic endocarditis, or heart disease."

The defendant also called the medical examiner of the city of New York, a physician by profession, and who conducted the autopsy on Ostrander's body. He had made some 2,200 autopsies. Testifying as to what the autopsy disclosed, he said it showed him to have been "in a state of very advanced sclerosis. All of the coats of the abdominal aorta were thickened and hardened in a solid mass from the diaphragm down to the divi

sion in the legs," and that "he had suffered from that disease from 10 to 15 years." "This man died," he testified, "with lobar pneumonia," and added that he had been suffering from that disease at least 10 days.

He continued:

“Assuming that a man of the age of Mr. Ostrander sustained abrasions as a result of a fall, while going up stairs of something like 5 to 8 feet; assuming that such a fall occurred and produced these abrasions that I have described on the arms-such a fall, if one did take place, could not cause death. In my opinion, these abrasions, or such a fall, which has been assumed here, if it did occur, did not cause the death of Mr. Ostrander. From my examination of this Mr. Ostrander. on this day, the probable cause of such a fall, if such a fall did occur, may have been due to a dizziness produced by a disturbance of the circulation in his brain, depending upon his arteriosclerosis, and it may have been due to a weakness due to the toxæmia from his pneumonia. Those are two things which might have caused him to fall. It would be apt and likely to produce vertigo. It would cause dizziness, and toxæmia will cause the dizziness. With a man of that age, with the sclerosis condition of his blood vessels, and with incipient pneumonia, it could be a usual and ordinary thing to discover that he is having dizzy spells. It could be a fact that he did have a dizzy spell, that could be symptomatic of the condition which I have just described."

A third witness, who was engaged in general medical practice in the city of Syracuse, was 60 years of age, and had been associated with the Crouse-Irving Hospital in that city for 8 or 9 years, and had been practicing since 1893, called by defendant, testified that the cause of death was lobar pneumonia. He based his opinion upon the hospital record of

9 F.(2d) 7 Ostrander, and upon the report of the autopsy.

The defendant called as a witness the man who was in charge of the Salvation Army Hotel at Auburn while Ostrander was making it his headquarters. He testified as follows: "I saw him often walking around, or rather shuffling around, the hotel lobby, as he didn't seem to be able to walk, always dragged his feet around, so, and saw him several times out on the street, and saw him holding up the lamp post, or up against the wall. Saw him several times standing up against the street corners and lamp posts in different parts of the city, and going around the hotel I saw him several times walk along, and then he would make a run until he got up against the wall, or something that would stop him. In walking in the hotel, I have observed him lose control or balance."

He further testified:

"When he came first to the hotel, he said he was coming to be treated for his legs, some trouble with his legs. Otherwise, he said, he felt pretty good, but his legs, that he hadn't control of them, and that he wasn't able to climb stairs. I wanted to give him a room on the third floor, and he said, 'No'; that he wasn't able to get up so far as that, and he asked me if I would give him a room on the floor underneath, second floor, one flight upstairs, and I said, 'Yes.'"

A number of witnesses testified as to his difficulty in walking. A gentleman living in Auburn, and engaged in the wholesale paper business there, and who had at one time employed Ostrander as a traveling salesman was asked about the man's physical condition. He answered: "I saw that he was very feeble. He could-well it was a great effort for him to walk. He shuffled his feet." "He walked totteringly," as if he did not have good control of his legs.

Another witness testified:

"He was never a fast walker, but for the last two or three years, he developed a scuffle or shuffle; didn't pick up his feet like he formerly did, and was unsteady on his feet, and I have been walking along the street with him when he would start forward quick and grab me as he did to hold himself back."

And the same witness, testifying to meeting Ostrander on the street a few weeks before this accident, asked him how he was, and stated that Ostrander replied: "I feel pretty good, if it wasn't for my damned legs." He said: "I cannot walk good, and I am going to try and get some treatment, and see if it will help me." And a medical witness testified that "apparent shuffling of

the feet, or apparent tottering of the body, would be a usual symptom of an advanced state of arteriosclerosis; that is the usual condition to be found in an old man-the tottering of the body or lack of control of the legs."

At the close of the case, one of the two medical witnesses who had testified on behalf of the plaintiffs was recalled to the stand and allowed to be re-examined, although defendant's counsel objected on the ground that it was not proper rebuttal testimony and amounted to a reopening of the case. His re-examination took a wide range, and on cross-examination he stated:

"I have been teaching 13 years; I don't go out and treat patients for money, and have not for 13 years. I have had no practical experience at medicine in the city of New York, but I do not take money for it. I don't know, of my own personal knowledge, a solitary thing about this man Ostrander's condition."

He stated also that he did not think that the physicians called by the defendant, and who had conducted the autopsy on Ostrander, knew more about what was the matter with him than he did.

The District Judge, in his charge, stated that it was necessary that the plaintiffs should prove their case by a preponderance of evidence, "upon the facts which the plaintiffs are required to establish, and those facts are that the deceased, Lewis Ostrander, did receive an injury which was effected through external, violent, and accidental means, and that that injury was the cause of his death, alone and independent of all other causes.' "That does not mean that the deceased, Lewis Ostrander, must have died immediately from the result of the injury. It does not mean that the deceased must have been killed instantly. But it does mean that, without the injury, or injuries, which the deceased received, he would not have died, and that his death was not contributed to in any manner or degree by any disease which he had at or before the time of the injury."

"If, however, as the plaintiffs contend, the injuries which the deceased received on the day in question, which was the 14th day of December, 1922, caused lobular pneumonia, which would not have been caused except for the injuries which he received, and the lobular pneumonia resulting only from the injuries so received was the immediate cause of death, if you are satisfied of that by a fair preponderance of the evidence, then the plaintiffs are entitled to recover.'

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