35 F. 26 | U.S. Circuit Court for the District of Colorado | 1888
In reference to this case I have come to the conclusion that the motion to instruct the jury to find in favor of the defendant should be sustained, and there is no need of an argument upon the facts to the jury. The facts are these; I simply state the facts in reference -to one question without any extended comment: Mr. Cronkhite, the insured, whose policy was dated the 3d of October, on the 6th of that month fell into an excavation, and received a bruise, from which time his health began to fail. He was partially disabled for some days, and then seemed to be better. Afterwards, and on the 5th day of November, he was taken down with pneumonia, and died on the 13th of that month. The contention on the one side is that, while pneumonia may have been the proximate cause, yet the bruise was the primary, and, though remote, the sole, cause of the death, in that that bruise created and produced the pneumonia, called “Traumatic Pneumonia, ’’from its origin, which resulted in death. Now, that is a question of fact which I do not attempt to pass upon, but should leave to the jury whether the bruise was the sole cause of the death within the purview of the policjn Of course, if pneumonia is a germ disease, it was not the sole cause, -for a blow does not develop or create germs. It may expose the person, by weakening the system, to their more potent action, but that is all. Doctors disagree, and I shall not pretend to determine the fact. The other is the question that I shall consider.
The policy was issued upon the 3d of October, but no money was then paid. In fact, none was ever paid to the general agents, Porter,
Under the terms of the credit given, Mr. Cronkhite, the insured, wras to pay the premium on the 1st of November; and the contention is that Mr. Terpenning and Mr. Cronkhite, on the 1st of November, went to the office of the general agents, about 1 o’clock in the afternoon, and met a gentleman there who had been at the time of the issuing of the policy such general agent, and was informed by him that he was no longer the agent, hut that Mr. McGaffey was, and that they would have to see him. They waited there some time, and, Mr. Cronkhite feeling ill, they went out, and, after they had left, Mr. Cronkhite went home, tolling Mr. Terpenning to go back and pay the premium, and that he would thereafter settle with him. Terpenning went back, he says, two or three times, to make payment, but failed to find the new general agent, Mr. McGaffey.