Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This is an appeal from a judgment entered upon a verdict for plaintiff in an action to recover accidental death benefits under the terms of a membership certificate issued by defendant, a fraternal benefit society organized under the law of the State of Ohio. The errors relied on arise out of instructions, rulings on evidence, and failure to grant defendant's motions for directed verdict, for judgment notwithstanding the verdict and for new trial.
In order to properly consider defendant's contentions that its motions for a directed verdict and for judgment notwithstanding the verdict should have been sustained, we set forth below the evidence in the record most favorable to plaintiff.
The membership certificate, which was issued to John C. Woods, stated that he was entitled to all the rights and benefits provided for Class A Insured Members in and by the constitution of said order and that "the benefit for death due to accidental means alone and independent of all other causes shall be" $5,000. A part of § 13 of article XV of the order's constitution, which counsel for both sides consider applicable to the case at bar, provides in part:
"Class A Insured Members shall be indemnified in accordance with the terms hereinafter set out in this Article, against the results of bodily injury hereinafter mentioned, effected solely through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident, alone and independent of all other causes."
Plaintiff, then known as Jacqueline C. Woods, daughter of the insured, is the beneficiary under the certificate.
Woods was employed as a claims adjuster with his office in Springfield, Illinois. In December, 1948, he was hospitalized and treated for angina pectoris because of pain, but he did not respond, and he was then treated for acute gastritis, to which treatment he responded. These facts, according to the attending physician, ruled out the possibility of a heart condition. A test, then made, did not show any evidence of a coronary occlusion or a coronary impairment; the heart vessels apparently were intact; they were not the cause of his hospitalization; there was a showing of myocardial strain, but the physician testified that the heart condition at that time was of minor importance. In January, 1952, he was treated for a throat infection at which time his blood pressure and pulse were normal, and an examination showed no gross heart enlargement, murmurs, thrills or irregularities.
Prior to May 7, 1952, he had the usual hobbies of fishing and hunting.
On that date, he was a well developed, well nourished man of 48 years, engaged in his customary pursuits as a claims adjuster. He met with his assistant in a tavern at Taylorville, Illinois, and again at a tavern in Springfield, during which meetings he indicated no physical distress and appeared to be in normal health. The two men separated about 7:30 p.m., Woods leaving to take dinner at a tavern. He was next found, in the early morning hours of May 8, 1952, behind the steering wheel of his car, which had collided with the rear end of a parked truck in a well lighted portion of South Ninth Street in Springfield. The truck with which he collided was dusty and silver in color, and was parked in the street about 3 feet from the curb line. It had no low bumper lights but did have top parking lights about 12 feet from the ground. Four feet of the car was wedged under the truck.
At the point of the collision, the street was 60 feet wide. No eye witness of the collision testified at the trial. A police officer found Woods sitting in a driving position, pinned between the steering wheel and the seat with his head erect and his hands lying free in his lap. There was some blood on the right trouser leg. By flashlight he saw that Woods seemed to be breathing. He had a faint pulse. Woods was taken to St. John's Hospital in Springfield, where he was found dead on arrival. Sister Delores, who examined him upon arrival, found that he had injury to both legs and a deep laceration on head.
The police officer found no skid marks at the scene of the collision.
An autopsy was performed upon the deceased by Dr. Harry Steen, a pathologist, who died before the trial. His report, under the heading of "gross examination," stated that, but for an abrasion upon the right leg just above the knee, there were no marks of trauma on the body. The report gave as a final diagnosis of the cause of death: (1) coronary occlusion; (2) myocardial fibrosis; (3) acute passive congestion of lungs, liver, spleen and kidneys; and (4) abrasion of right leg.
Dr. Stericker testified for plaintiff, following his examination of the autopsy report and the tissue slides taken by Dr. Steen in the course of the autopsy. He said that in his opinion Woods had a disabled heart in December, 1948, that in January, 1952, assuming the records to be true, healing had taken place and at that time it was reasonable to assume that Woods had a serviceable heart. He explained that when the artery that receives blood is cut off from its blood supply, that portion of the heart muscle dies and healing takes place. If the occlusion remains, that particular artery does not open again, and the blood supply comes from behind the occlusion, by-passing it, and supplies blood to the muscle and if "there has been an occlusion of several months duration, and if the man is vigorous and attends to his everyday duties, I would assume that the heart had healed, the occlusion probably remaining. Even though there had been a healing, when an autopsy is performed you would always find the occlusion still present. In the usual and customary course of events, it is possible for a man to have such occlusion and healing and never know he has had it. After it remains normal for a long period of time and the man has returned to his daily work he has had a healed infarction." He also testified that trauma could injure the visceral organs, but that traumatic death is unusual, without visible external signs thereof; he further testified generally that shock, or dilation of the blood vessels, can cause death, but that fright cannot. From the autopsy report he testified that the ...