Metropolitan Life Insurance v. Neikirk

Mitchell, J., delivered the opinion of the Court. The suit in this case is upon an accident policy issued by the Metropolitan Life Insurance Company, the appellant, insuring Carlton E. Neikirk, the husband of the appellee. The declaration sets forth that the policy was originally issued and delivered to the insured on November .1st, 1930; that through the regular payment of renewal premiums it was in full force at the time of the death of the insured, and that under its terms and provisions, the appellant agreed, among other things, to pay to the appellee the sum of five thousand ($5,000) dollars in event the insured should lose his life as'a result of bodily injury caused directly and independently of all other causes by violent and accidental means, prior to such date as the insured' should reach the age of sixty-five years. Finally, it alleges that on July 4th, 1936, the insured, being at that time thirty-four years of age, did sustain bodily injuries under the circumstances above set forth, as a result of which, on said date, his death occurred.

Demand for payment, after due proof of loss, having been met by a refusal of the insurer to pay the loss, suit was brought in the Circuit Court for Washington County, by the claimant, resulting in a verdict and ¹⁶⁵ judgment in her favor for the sum of $5,425, which was subsequently remitted by the appellee to the sum of $5,420; and it is from that judgment that this appeal was taken. The testimony as disclosed by the record may, with substantial accuracy, be summarized as follows: That on July 4th, 1986, the insured, being at that time thirty-four years of age, accompanied by Mary G. Zimmerman, his mother-in-law, and his five-year-old daughter, proceeded from Hagerstown, Maryland, to Bloekford’s Landing, a point along the Potomac River, for a holiday outing; that they arrived at the river at around 11 or 11:30 A. M., whereupon the insured started to fish along the river bank a short distance from, and out of the sight of, his companions, who were preparing lunch. Not long thereafter, while to all appearances in his usual and normal condition of health, he returned to where his companions were, procured a drink of water and returned at once to the scene of his fishing. Approximately twenty minutes later, the mother-in-law, accompanied by the child, went to a point on the river bank above where the insured had been fishing, from which they discovered his body submerged in water.

Describing the position of the body, Mrs. Zimmerman stated, that “his head was towards the edge of the water and his feet out in a sort of a slant, his feet further from the bank than his head. His head was at least three feet from the actual edge of the water. I will say the approximate depth of the water was two feet where his body was. I thought his body was resting on the bottom.

He was entirely submerged.” She further testified that the body was near the end of a path leading down the bank; that the contour of the bank was very steep; that it was eight feet high; that below the bank there was a beach five or six feet in width which sloped toward the water, and that she observed no movement of the body at the time she called for help, she being afraid to descend the bank. Jerry Greer testified that, upon being told that some one ¹⁶⁶ had drowned, he immediately went to the scene; that the body had then been brought out of, and was lying on the edge of the water; that he administered artificial respiration, and that the body was then warm and he would say the insured was not then dead, although he saw no movement, whatever, in any part of the body; that he, and a young woman who came on the scene and offered her services, ministered to the deceased in their efforts to restore respiration, for thirty-five minutes, during which time he estimated that a quarter of a pint of water was pumped from the body. Mr. Greer observed a mark on an eye of the insured, that his lip was swollen, and that his nose was bloody or that blood had flown therefrom; and he described the slope in the part of the bank adjacent to the water’s edge as being at an angle of from thirty to thirty-five degrees. Dr. Frank F. Lusby, who knew the insured, saw the body on the day of the death of Mr. Neikirk; he observed that the deceased then had an injury on the left upper eyelid, and a lacerated wound on the right side of his nose, but did not observe the injury to his lip; that the injuries described by him were accompanied by bruises; that a bruise from a blow received after death is not the same color as from one received before death, and that the bruises he saw were definitely from injuries received prior to the death of the insured; that the injured eyelid was swollen, and that a blow on a dead body does not cause swelling.

That he was present at an autopsy performed on the body by Dr. Howard J. Maldeis, approximately eight weeks after the date of death, at which time the bruise on the eye and mark on the nose were still demonstrable; that in his opinion the autopsy did not show any cause for natural death. He observed at that time a blood clot in the left coronary artery, and through the rest of the blood stream a large number of blood clots; that under ordinary circumstances death does not instantly ensue from coronary thrombosis, but usually follows in two or three days, and that if the crisis is passed within that period, the more dangerous ¹⁶⁷ period is reached in from fourteen to sixteen days. He added: “If a coronary thrombosis has existed for anything like that time, a man would not be able to go around and fish and go to a picnic. If it had existed from two or three days or from twelve to fourteen days, that fact would be demonstrable at an autopsy, such as was performed; that the autopsy showed no evidence that the insured died from coronary embolism; that from his observations at the autopsy there was no evidence of drowning, and in his opinion the insured did not drown; that assuming a microscopic examination by Dr. Maldeis indicated arterio-sclerosis, there was nothing at the autopsy to indicate that the insured could have died of arterio-sclerosis without the formation of a blood clot.” Dr. W. Howard Yeager testified that he examined Mr. Neikirk on January 14th, 1936, and that with the exception that he then had bad tonsils and pyorrhea, the examination showed him as being in good health.

It did not demonstrate any symptom of arterio-sclerosis, and showed the superficial vessels to be perfectly normal. Joseph Neikirk, a nephew of the insured, saw the body approximately half an hour after it was taken from the water; he watched the process of artificial respiration and noticed a small steady stream of water running from the nose. According to this witness, the deceased had a cut on his nose, a swelling over his eye, and a small cut on his lip — the mark over the eye was bruised. He observed the fishing rod of the insured lying against the river bank at a point directly at the bottom of the path.

Mrs. Bessie Neikirk, the appellee, testified that she was a registered nurse, that the general condition of her husband’s health was good, and that he missed but little time from work on account of illness. When she reached the scene of his death, she found on his left eye an ugly bruise; the corner of the mouth was swollen and a, deep scratch was on the nose. The indicated injuries were not normal, “they were very blue, very much discolored, they were bruises.” She described the steep part of the bank as being from eight to ten feet high, surfaced with ¹⁶⁸ underbrush and stones and difficult to climb; the slope of the space between the bottom of the almost perpendicular part of the bank, and the edge of the water, being at an angle of forty-five degrees. And finally, Dr. Maldeis who, as heretofore indicated, conducted an autopsy on behalf of the appellant, testified that he performed the same on August 25th, 1936, in the presence of Dr. Lusby; that the examination showed no positive signs of drowning, and that Mr. Neikirk did not drown; that based upon both autopsy and microscopic examination findings, in his opinion the cause of the death of the insured was due to a diseased condition of the coronary artery; that the coronary disease from which the insured was suffering showed a definite narrowing, likewise it showed a clot which was probably post mortem; that it takes a certain amount of time for a clot in a vessel to become organized, and it is possible that there was not time for the complete organization of the clot which he found. “In other words, this death, in my opinion, was sudden; the clot was present at the time and the clot had not actually closed off the circulation to the man’s heart muscle, he did not live long enough — it takes sometimes five or six hours to organize * * *.

A man can die from coronary disease without a clot in the coronary artery; without any muscular changes whatever; he can drop dead from the disease itself with a moderate narrowing or with a complete narrowing * * *. From the autopsy, both gross and microscopic, I did not find any other indicated cause of death than I have described.” Dr. Maldeis described wounds on the left eyelid and nose, which he observed, as not being such as would cause death. He saw nothing' wrong with the mouth of the deceased; in his opinion the process of embalming would tend to cover up any discoloration which may have existed about the wounds, but it would not remove swelling, and he found no evidence of the latter. “Q. A man can die from natural causes and the cause cannot be determined by an autopsy? A. That is true.”- ¹⁶⁹ On cross examination the doctor stated he would not say it was usual for a person like Mr. Neikirk, in the beginning of arterio-sclerosis, to die from that disease without the formation of a clot, and that while arteriosclerosis is hereditary, it is uncommon for a man of the age of the insured, under the other conditions of the body as he found them, “to die from arterio-sclerosis, particularly so quickly without the formation of a clot.” Two exceptions are