Wilson

This is a case parallel to that of New York Life Insurance Company v. Wilson, 178 F.2d 534, 535 , decided by this court November 21, 1949. In each case Cecelia J. Wilson sued as beneficiary under an insurance policy. Both cases were tried at the same time, the testimony taken in this case, with respect to the manner of death of the insured, Harry H. Wilson, being by stipulation made a part of the record in the New York Life case. In each case the action arose out of the death of Harry II. Wilson. While the policy in the New York Life case was a life insurance policy with provision for double indemnity in case of accidental death as therein defined, here the policy was simply an accident policy providing, among other benefits, indemnity in a stated amount for loss of life “resulting directly and independently of all other causes from bodily injuries * * * effected solely through accidental means, subject to the provisions, conditions and limitations” contained in the policy.

Since in each case the action was based upon a claim of death by accidental means, and since the evidence respecting the cause of death was the same in each case, it is unnecessary here to recount the…

(dissenting).

The pertinent language of the provision said to relieve the insurer of liability reads: “The Accident insurance under this policy covers all bodily injuries, fatal or otherwise, subject to the provisions, conditions and limitations specified in this policy, except: * * * (5) those caused wholly or partly, or the results of which are contributed to, by * * * hernia * * * or by any disease, or medical or surgical treatment therefor, such hernia * * * or medical or surgical treatment to be construed as sickness.”

Nobody, of course, claims that the hernia caused the insured’s death. The contention of the insurance company, predicated on the testimony of several physicians, was that the operation caused it. These experts gave it as their opinion that the embolism of which the insured died was postoperative in character, that is to say, it was the result of a clot in the blood stream developing out of the operation itself. But the trial court, as we pointed out in the companion case, New York Life Ins. Co. v. Wilson, 9 Cir., 178 F.2d 534 , rejected this testimony and accepted instead the medical opinion of the plaintiff’s witnesses that the embolus was not connected with…

181 F.2d 88 WILSON v. BUSINESS MEN'S ASSUR. CO. OF AMERICA. No. 12284. United States Court of Appeals, Ninth Circuit. March 28, 1950. B. W. Davis, Pocatello, Idaho, for appellant. A. L. Merrill, R. D. Merrill and W. F. Merrill, Pocatello, Idaho, for appellee. Before HEALY, BONE and POPE, Circuit Judges. POPE, Circuit Judge. 1 This is a case parallel to that of New York Life Insurance Company v. Wilson 178 F.2d 534, 535 , decided by this court November 21, 1949. In each case Cecelia J. Wilson sued as beneficiary under an insurance policy. Both cases were tried at the same time, the testimony taken in this case, with respect to the manner of death of the insured, Harry H. Wilson, being by stipulation made a part of the record in the New York Life case. In each case the action arose out of the death of Harry H. Wilson. While the policy in the New York Life case was a life insurance policy with provision for double indemnity in case of accidental death as therein defined, here the policy was simply an accident policy providing, among other benefits, indemnity in a stated amount for loss of life "resulting directly and independently of all other causes from bodily injuries * * *…