Wilson

178 F.2d 534 NEW YORK LIFE INS. CO. v. WILSON. No. 12227. United States Court of Appeals Ninth Circuit. Nov. 21, 1949. As Amended Nov. 30, 1949. Rehearing Denied Dec. 22, 1949. J. L. Eberle, B. S. Varian, Dale O. Morgan, Boise, Idaho, for appellant. B. W. Davis, Pocatello, Idaho, for appellee. Before HEALY, BONE, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 Appellant in 1928 issued to appellee's husband a policy of life insurance providing for the payment to appellee of double indemnity upon proof that the death of the insured 'resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.' The appeal is from a judgment in favor of the beneficiary under the double indemnity provision. 2 On April 7, 1947, the insured was operated on for hernia. He was at that time sixty-one years old and in the opinion of the operating surgeon was in the ordinary good health of the average man. Within a matter of twenty hours after the operation he died in consequence of pulmonary embolism. Evidence taken on the trial substantially shows, and the court found, that the embolus was produced by the extraordinarily violent…

Appellant in 1928 issued to appellee’s husband a policy of life insurance providing for the payment to appellee of double indemnity upon proof that the death of the insured “resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.” The appeal is from a judgment in favor of the beneficiary under the double indemnity provision.

On April 7, 1947, the insured was operated on for hernia. He was at that time sixty-one years old and in the opinion of the operating surgeon was in the ordinary good health of the average man. Within a matter of twenty hours after the operation he died in consequence of pulmonary embolism. Evidence taken on the trial substantially shows, and the court found, that the embolus was produced by the extraordinarily violent coughing, choking and snoring of the insured resulting unforeseeably from the routine administration of opiates and sedatives incident to the operation. Death was found to have been accidental within the intendment of the insuring clause.

Reputable surgeons testifying by deposition for the insurer gave it as their opinion that the embolism was post-operative in…

I dissent. In my opinion the majority have completely disregarded the controlling Idaho decision and have ignored the clear and unequivocal language of the policy.

The exclusion clause, quoted at length in the majority opinion, provided that: “Double indemnity shall not be payable if the insured’s death resulted * * * directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection * * * ” etc.

The facts of the case as we must deal with them, are those disclosed by plaintiff’s own witnesses, — those most favorable to her. The two physicians, whose testimony furnishes these facts, agreed that the thrombus, from which the death-causing embolus came, was a “bodily infirmity”, which came .about in consequence of an operation several years earlier, and that the thrombus was probably located in the pelvic veins. Dr. Call testified:

*539 The controlling authority here is Rauert v. Loyal Protective Ins. Co., 61 Idaho 677 , 106 P.2d 1015 . In that case the corresponding excluding clause read: “General Conditions and Provisions. * * * E. Indemnity shall not be payable for death due to disease, whether acquired accidentally or. otherwise,…