RIVES, Circuit Judge.
This appeal is from a judgment for the plaintiff in an action for the double indemnity provided in two life insurance policies each in the face amount of five thousand dollars. The pertinent provisions in the two policies are identical, being as follows:
upon receipt of due 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 cause, and that such death occurred within sixty days after sustaining such injury.
"This Double Indemnity benefit will not apply if the Insured's death resulted from self-destruction, whether sane or insane; from any violation of law by the Insured; from Military or Naval Service in time of war; from a state of war or insurrection; from engaging in submarine or aeronautic operations; from physical or mental infirmity; or directly or indirectly from illness or disease of any kind. The Company shall have the right and opportunity to examine the body, and to make an autopsy unless prohibited by law."
The first question, preserved by denials of defendant's motions for directed verdict, for judgment notwithstanding the verdict, and for new trial, is whether there was sufficient evidence to support the jury's verdict. The appellant insists that there was no substantial evidence to prove "that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause," and not "from physical or mental infirmity; or directly or indirectly from illness or disease of any kind."
At the time of his death, the insured was 82 years and 9 months old. He neither smoked nor drank intoxicants, and was, generally speaking, a man of temperate habits. His occupation was that of a travelling salesman, in which he usually drove his automobile. He engaged in that occupation up until seventeen days before his death, at which time he fell down the steps in his home. Until that fall, he was erect in carriage, walked briskly, was keenly interested in current affairs, and his sight and hearing were good. He had never had a serious illness of any kind.
On the morning of August 4, 1956, he fell down six of the thirteen steps between the first and second floors of his house. The fall resulted in a slight discoloration on his left temple, his legs
On the morning of August 21, he was found in the bathroom, sitting on the commode, in a slumped over position; he could not speak coherently. The solid top of the commode was down, but there was evidence of his having vomited in an adjacent lavatory. He died in less than two hours.
The attending physician certified that his death was due to "cerebral hemorrhage."
The insured's regular physician testified that during the years 1955 and 1956, prior to his fall on August 4, 1956, he had treated the insured for high blood pressure and arteriosclerosis; that on July 5, 1955, his blood pressure reading was 208 over 98, which was abnormal for a man of his age and moderate habits; that thereafter his blood pressure varied on account of the treatment but remained about the same; that his blood pressure on August 14, ten days after the fall, was 202 over 102; that he could then see that he was worse, "he was groggy and sort of incoherent."
The evidence was in conflict as to whether the arteriosclerosis and high blood pressure before the fall were of such severity as to be termed a disease. One of the physicians testified that he would not consider them such unless they produced "some morbid change or morbid state." Prior to the fall, they had not produced any marked personality changes, nor caused the insured to stop work as a travelling salesman, nor to stop driving his automobile. The district court charged the jury fully and fairly on this issue.
The answer to the question as to whether substantial evidence supports
Appellant's only other insistence is that the district court erred in instructing the jury in its oral charge as follows:
The form in which appellant's counsel reserved an exception to that portion of the charge is significant:
The general rule is that opinion testimony of expert witnesses is not of controlling effect, and a jury is not absolutely required to accept opinions of experts in the place of its own judgment.
Finding no reversible error in the record, the judgment is affirmed.
"So you are to look to the evidence in this case to determine for yourselves as men who are accustomed to common speech whether or not the arteriosclerosis and the hypertension, which I understand ordinarily accompany each other where either is found, as to whether or not that was merely a condition which was not abnormal in degree in a man 83 or 84 years of age or whether the arteriosclerosis and the hypertension which he had was abnormal for a man that age. And if you are reasonably satisfied that the arteriosclerosis and hypertension were not abnormal for a man of the age of the insured and therefore did not constitute disease or infirmity within the meaning of the policy and you are reasonably satisfied that the fall and consequent injury served to accelerate the death of the insured, then the plaintiff would be entitled to a recovery in this case.
"On the other hand if you are reasonably satisfied from the evidence in this case that arteriosclerosis and hypertension were present in the insured to a degree which would appear to you after considering all of the evidence in this case to have been abnormal for a man of his years, and that that condition joined with the fall and the injury, that condition as a disease or infirmity joined with the fall to produce death, then the plaintiff would not be entitled to a recovery."