Feldmann v. CONNECTICUT MUT. LIFE INS. CO., ETC.

THOMAS, STONE, Before JOHN- SEN, Judges. Circuit JOHNSEN, Judge. Circuit The action is one a beneficiary to re cover on accidental pro death benefit vision of three life policies. insurance regular death benefit poli under each paid. cy By provision had been volved, agreed pay the insurer had an equal additional sum to the face amount policy, if of each the insured’s death re bodily injury “from sulted effected * * * means”, however, cluding, death “from self-de poisoning”.1 struction” or “from The insured had died from an overdose nembutal, pharmacologically known ordinarily pentobarbital sodium and sleep. produce contended the death was not one (1) from acci- means; (2) that was dental from self-destruction; (3) that it was a death jury, was tried The case verdict for the drowning provision injuries or of internal accidental death benefit 1 The autopsy) (which form of a rider attached vealed tbere shall be evi policy) a visible contusion or wound was the each con dence * * except payable, tract, the amount the exterior *. following language: Company any pay shall not be liable and was if such death Mutual Life Insurance ment hereunder shall direct Connecticut Com * * * ** * indirectly agrees pay ly pany [a stated self- * * * insane, pay (in destruction while sane or to the amount amount] addition upon receipt Policy) or infection other than able under said * * * * * * simultaneously occurring proof with and in that suc con of due sequence bodily injury, bodily directly independently h resulted, bodily infirmity, causes, injury mental or from disease of ef of all other solely through external, kind.” violent and fected (except in .accidental of which case effect, special would have a although fatal which, to three its answers vary insurer’s admitted that the amount interrogatories submitted at susceptibility ont: of the individual and with the death request, (1) found means; was the tolerance de- which habitual (2) use from accidental self-destruction; (3) velop, but and that there had clinical not a The poisoning. grains cases 75 105 known where were death from that was a to have been taken and the had sur- appealed. victim vived, on antidotal treatment. The medi- policies are agree that all the parties cal nem- witnesses further declared that the law and York contracts Mew poison, concept their was butal was but in the action. controlling New York is purely one, they regarded scientific therefore, tne view of in question, principal anything produced which had a lethal toxic interroga- made to answers being in poisonous effect as correctly tories, jury was is whether situation. One that whis- witness testified advised, by the sufficiently and instructions key and alcohol thus be classified spe- with in connection generally or poisons. in the sense interrogatories, cial poison- poison term apply the it was to concept But defini scientific le- law, so that New ing under necessarily would not be determinative tion decide whether able to gally whether nembutal was died meaning of- the exclusion clause the details into going Without policies. The held New York courts have per- evidence, should situation general determining in meaning before more year or For a haps stated. be an, contract, point terms of insurance using nem- death, had his scientist”, “must of view not be that and purchases sleep. His butal to induce v. average (Lewis but “that of man” medi- made without apparently taking were Corp., 224 Accident Ocean & Guarantee general- He direction. prescription cal ; 1129) 120 7 N.E. A.L.R. N.Y. but, if this capsule, ly 1%-grain took a' the contract must “be interpreted in min- 20 15 or effective within prove not utes, light language which we com was He the dose. repeat he monly understand; and use words, in other stom- and nervousness suffering from speech” our common (Mansbacher v. Pru up active his given had ailment and ach Co., dential Insurance 273 N.Y. involved, occupation. here On the occasion N.E.2d 111 A.L.R. 618); and a wrestling match he had returned a term in should accordingly be A.M., and his wife 1:00 and about o’clock such given a meaning “as thought common and awhile some visited he had drunk beer speech common and would now image and he During period, they retired. before it” (Van describe Vechten v. American wife twice, and his the bathroom went to Eagle Co., Fire Ins. 146 N. rattling him cabi- “heard medicine 432, 433, 38 1115). E. As a matter was complained He stomach net”. his therefore, legal principle, jury him, just his wife bothering and before required determine, whether asleep the bathroom. again fell he went to insured’s death from nembutal was a death many know how nembutal wife did concept scientific and any trips, capsules he had taken on of these definition, but whether on the facts and she hear him when he nor did circumstances, light viewed of com next the last time to bedroom. knowledge experience, and mon his death he she knew was when awakened thing was one within the under he her that She her and told cold. standing use of that term by the ave doctor, ill and called a saw rage man. aid arrived he had before medical died. pointed We have in Aubu Metropolitan Life v. Ins. chon due autopsy showed that death' was decided, this date that certain F. 2d stomach an overdose of nembutal. The substances, arsenic, strychnine, such as quantity equal to 15 of contained a acid, perhaps universally are carbolic so capsules, sleeping in addition poisons mind such, system and into his had been absorbed they may be declared testimony be There his caused death. insurance ex experts for the that from within medical clause, law; as a matter that as ordinarily clusion grains' of nembutal evidence, concept scientific may not substances there to other right guided by indication have created public familiarity as to us, whatever, general public concept, seems general the particular ordinarily will be circumstances a case in such the evi to have made the bare appraisal one for was to determine from the as to still produced; and that dence may ex whether insured’s death was some substances clear, imply mind that legally be said to but can not ist some vari whether nembutal was subject to possibly be or it son on the basis hence not was to be resolved conditions ation testimony witnesses. The absolute, of these whether and that also here proceedings which poison will thereafter occurred involved constitutes substance the tend the and cir connection with deliberation facts be determined on have to case, jury but with to confirm the confusion. particular the of cumstances apply to evidence right the .the to that, jury record shows after the had experience as knowledge and common hours, reported several deliberated for As to substance. respect the exist with judge to agree. that it was unable The trial apprais requires jury .any substance deliberation, urged and it to continue its perhaps be of concept may al, scientific asked have the the foreman assistance, ultimate evaluating but some instead, court, sum structions re-read. The depend up will resolution as to the marized the situation reasonably what determination “There another issue stated: soning concept in the be the would if the death defense in the case—that situation. accidentally poisoning, from or un sulted in- case, court’s the trial present In the administered, accidentally if death re on what jury told nowhere structions poisoning, from there could be no sulted in- whether determine it should basis again. over it recovery case. Go was a death nembutal from death sured’s poisoning? No death from Did the merely in- unaccidentally jury poison. from accidentally recovery, whether for the be should verdict that its structed add (Emphasis istered.”3 admin if it believed hour, jury ed.) approximately an In was the result death insured’s finding with a to the court room in- submitting the In poisoning. the insured’s death the insured’s “Was terrogatory similarly the court poisoning?” (cid:127)result all proceed- From of this concept or what explanation of (cid:127)made ings generally, we been unable to es- employ required to standard cape the conviction was led question. attempting to an to believe that the view of medical ex- omission, perts controlling upon A mere instruction it. The record specific request,2 would of to us judge without a course seems to indicate that trial ordinarily prompt regarded a judg reverse himself scientific as ment, here is governing legal but the situation one in which the standard. He seem- the jury ingly convinced that was con did not we are believe that should be competently limitation clarification and not able deter made of the fused principle instruction, applied, implied concept proper to be even mine implied concept beneficiary purported in after the had .and where to at- attempted apparent scope. Under had at least to tack its all the cir- struction emphasis situation, cumstances of challenged. exclusive 'be ought beneficiary did not make the court bold there was no While involved, request more a matter for a she of law. by exception previous attempt, to the instruc renewed challenge exception tions, instructions, the scientific to the to' court’s pointing pointing poisoning, that, though extent to the extent of out even taking the evidence showed that nembutal excessive amount of medi- not harmful cine as a normal doses was be construed .in contending medicine, poison- and of even not constitute ing amounts, meaning within taken in could ex- excessive if poison. argued ception. She prin- was accidental to an commitment therefore not covered: cases, ciple policy.” we think the granted. a new trial should reversed and case, In the Mansbacher the insured had attempt judgment, In its an to sustain the overdose of veronal relieve an Court, argued Supreme court earache. The Appellate insurer has that the trial poi Term, in 154 should nembutal Misc. have declared 278 N.Y.S. law, preju adopted son as a and that no the same matter of view that of the: judge possibly Pixley dicial have trial error therefore could case and held' . rests This unforeseen contention death of the committed resulting York Court from the suggestion taking, of the New intentional to- earache, Appeals Prudential relieve an Mansbacher v. a dose of veronal fatal, proved Insurance 21, does not come within Appellate policy”, of the terms of the case, resulting bodily injuries as a death Division in morphine external, violent, effected meaning Appellate and accidental constitutes a means. The Di Mans ground! reversed an insurance exclusion clause. vision this decision however, did not involve while the intended the act bacher merely death, acci issue one of which resulted in his did not an of ticipate followed, expressions to mor dental as the unusual result means. that his phine were made to avoid the effect death therefore occurred implied the through accidental In es holding on accidental means means. order to Pixley cape implication previous the of the affirmance case of v. Commercial Ass’n, Pixley Accident which it had made in the case and Travelers’ Mutual 1107, App.Div. 950, Appeals, N.Y.S. affirmed also of the Court of as an 545, apparent approval judge’s of the trial views N.Y. 116 N.E. 1070. means, the that case on accidental court In Pixley case, the the tak insured-had 489, said, page at that “the af en an morphine overdose of suffer while necessarily may not be firmance said ing neuralgic pain. The insurer moved for predicated upon the as have been reason ground a on nonsuit the the by justice.” signed the learned trial It was not external, violent, one “through pointed out that policy the in the Pix policy and accidental means” within the ley case had poison contained a exclusion coverage, and also was a “death * * * clause and added: “It is thus apparent sulting from by caused poL that, even had the justice trial son, voluntarily, taken involuntarily, or ac as having resulted through acci cidentally” meaning of the dental means—contrary expressed to his granted clusion clause. trial judge reason for the dismissal complaint— nonsuit ground on the sole the evi disposition would proper. have been dence would finding not sustain a Death, through means, would not death was one from accidental be plaintiff entitled to recover where cause, it, as he viewed as deáth was the accidental means was talcing poi consistent with theory that the insured voluntarily, involuntarily, son or acciden “made judgment a mistake in his as to the tally.” system effect his the tablets would produce” as theory affirming that “he acci In Appel the decision of the dentally poured Division, tablets Ap late Appeals, out”. Court of in 273 pellate Appeals Division and the Court of 111 A.L.R. 618, similarly attempted affirmed the any escape state the ef ment their case, by reasons.4 The fect Pixley effect declaring: Pixley Pixley,case trial court’s decision entirely was an different construed in Fane as v. National Ass’n case as specifically conditions stated Clerks, Railway Mail 188 that should not extend to nor injuries N.Y.S. was the in since cover of which there should be no morphine, external, sured intended take “the visible mark on accidental, insured, not injuries means were but deliberate nor to resulting or death intentional, only poison the result caused a taken volun photostatic fully copy In order to assist ns in under with a York New standing Pixley case; Appeals the situation in the Court of record. commendably the insurer has furnished us prescription, poi ical tarily, accidentally. not a involuntarily, does constitute s popular concept, son in within the there died from effect insured clause, morphine dose was from which there insurance exclusion was external, and, body, Supreme Court as visible mark on the tended Missouri further, nos poison legal if absolution for all self-selected which even tak accidentally, fit take bring en did not the case trums that see purposes. policy.” within the terms even for intended medicinal Whether such substance was self-selected Giving weight due and effect popular one which in courts, expressions these York New poison justified treating in not though as we must—even their immediate taking purposes and in nec for medicinal purpose obviously escapive—they do ordinarily essarily perhaps could and require seem to or warrant an But, jury. be a absolute declaration that nembutal is a where, here, purpose for event matter son as a law. The basis for the insured had the substance morphine is a manifestly disputed, factually the issue has not indicated the New York wholly removed one could be courts, although be observed consideration. legislature passing State attempt in a apparently it, further similarly has classified argued judgment, “poison” sustain requiring that sold it be insufficient label, was in event arsenic, strychnine evidence support finding that the death was potassium cyanide. Consoli See Cahill’s testing In the suf from accidental means. dated Laws of ch. New §§ ficiency 1360, 1364; McKinney’s Laws Consolidated course, not, Annotated, we need 16, of New York c. Education Law, circumstantial 1366, may concern ourselves with the But 1370-d. whatever §§ support an in insurer evidence of the to concept morphine general public be the facts ference of suicide. The poison in of New absolute the State above, plus the public which been set York, have because of its health beneficiary that, us, of the evidence on behalf laws unknown to or for other reasons not nembutal did imme where a dose single we this fact either not feel that do effect, soporific produce diately a to that ordi enables or entitles us declare medically pro it could nary necessarily occupy recognized barbiturates automatism, in which state of equally position in the duce a similar without be might user take another dose express mind. Without doing, must courts, is by ing conscious what the New declaration a jury present common-thought-and- be sufficient held to our view means, within the by generally on accidental speech applied by New York courts applied terms rule New York courts to insurance Co., Insurance question wheth Prudential requires that the Mansbacher v. us hold 618, 18, 140, 111 from nembutal 273 er the insured’s death 378, 486. poisoning present a death from and 247 case was jury. appraisal by for was matter us beneficiary to have seeks in the anti similarly is no merit There in ad erred declare that the trial court beneficiary that thetical contention hospital of the in mitting records certain not con declared nembutal should be they privi sured, were ground on this as matter case stitute theory law. leged Missouri under Fidelity & The cases Dezell v. law. which the insurer was that statements 1102, Co., 253, S.W. Casualty Mo. 75 176 in hospital records showed Equitable Life v. Hemen Assur. Soc. previous attempts made as to sured had 231, 80, over, 67 P.2d A. 100 Colo. 110 privileged were commit suicide not un support cited in the benefi L.R. Casualty Co., Continental der Griffith v. ciary’s contention, have considered been 253 299 Mo. S.W. 1047. in Aubuchon v. Metro discussed statements After these had been received Co., objection, 142 politan F.2d Life Ins. over the bene ficiary herself date decided. undertook to offer We indicated that we and read hospital parts record not believe the declaration in the other case, good Dezell that a substance taken she as favorable her cause. faith, purposes, for medicinal turn offered the entire and med record, It privilege only all ground could be made one of mere fact aspect the the legal Whether court’s elimination of its thereby had part been waived. in This controlling offered instruction. record first done, need having interrogatory we privileged, surer been originally clearly consider, beneficiary “Was result of the insured’s death the for the soning?” jury, ex under any privilege have submitted to the waived question of generally, record circumstances of the isted as to the in law Rule 49 portions thereof and fact for answer. subsequent offering of Evidence, (b) Proce Wigmore on of the Federal Rules of Civil evidence. Cf. 723c, 2390; dure, Jennings following v. Edition, section U.S.C.A. Third §§ Co., only pure 226 Mo. fact authorizes the Acc. Ins. submission National Life & 226; City questions special interrogatories. by way v. App. Wells 46 S.W.2d 1006; Carpenter R. 132 S.W.2d Cf. v. Baltimore & O. Jefferson, Mo. McHaffie, Cir., 348 Mo. Rule further 109 F.2d 375. The Demonbrun v. Metropoli expla quires 923; Bouligny give v. “such that the court shall 156 S.W.2d necessary Co., Mo.App., S.W.2d nation or instruction” as tan Life Ins. competently to enable the 474. the interrogatories submitted. cer stated, That For reasons tainly cannot claimed to have done is cause and the reversed here, for, suggested above, if the trial. newa remanded for was to be able to answer the Rehearing. Petition On terrogatory alone, fact insurer ar- rehearing the petition for On necessary that the its court first eliminate rule ignored opinion gues that our legal aspect by inherent some sufficient charge is not omission mere that a planation gen either in the a re- absence ground for reversal charge spe eral or in connection quest specific instruction. for a cial interrogatory. opinion suggests, the situation As the objected to the submis- beyond scope a bit seemed to us to be sion of the interrogatory and has proceedings purpose of this rule. assigned giving of it as error. jury was confused and indicated imply, determine the We do not legally course, unable that the sub- mission improper court’s issue from the instructions. interrogatory nec- essarily is emphasis error—any reversible exclusive more than previously had tend- we concept implied have the scientific opinion party that the that a can escape the bare instruction ed make generally effect request the evidence of his failure to specific was to determine instruc- tion in general insured died to a whether the relation verdict. But be resolved the submission imply improper special that the in- concept. terrogatory, ben- or the on the basis of scientific submission special of a requesting tendering interrogatory or explanation eficiary, while instruction, had, by excep- instruction as will jury compe- enable the unquali- challenged tently it, charge, manifestly may tions to the consti- final- And instruction. tute reversible error where the is record fied ly, qualify convincing limit spe- failure to answer made to the court’s sug- challenge, implication, after interrogatory cial has determined re- for an instruction request gested sult of the verdict. That standard clearly here, for, popular is the situation the an- swers which the been futile. made to the other submitted, interrogatories it settled ifBut these views seem too lib every in the case in favor fail eral an absolution beneficiary. specific instruction, request a ure to argues, situation, is another element in On the- entire we think a re- require properly justly required. that still would situation our trial is the reversal to poisoning question petition stand. rehearing accordingly de- compositely of law and fact. here nied.

Case Details

Case Name: Feldmann v. CONNECTICUT MUT. LIFE INS. CO., ETC.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 4, 1944

Citation: 142 F.2d 628

Docket Number: 12617

Court Abbreviation: 8th Cir.