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and certified that his ailment was "torpid liver and nephritis,” and the same physician certifies that the chief cause of death was “nephritis," the contributing cause being “valvular heart trouble.”

Within six months prior to November 1st, therefore, Scott, who was 60 years of age, had been treated for double hernia, congestion of the liver and palpitation of the heart. In view of all this it is not surprising that July 5, 1902, he wrote his chief: “Dr. Miller says I was pretty near a goner on June 27th.” After November 1st there are certificates from three physicians as to Scott's maladies, but no one of them mentions an accident or the discovery of a bruise upon one of his shin bones. On November 6, 1902, Scott wrote Chief Wade: “I was taken seriously ill Tuesday night (November 4). My heart rather failed me.” On November 11th and 13th and on December 1st he also wrote Wade, but in none of these was there any allusion to an accident or a bruise.

Under the certificate of insurance Scott was entitled to receive "a sum not exceeding $15.00 per week against loss of time.” Although he was off duty for 12 weeks after November 1, 1902, he made no application for an allowance and did not mention any accident, notwithstanding the fact that he wrote to the defendant's collector paying an assessment about November 20th.

An autopsy was made February 4, 1903, and the physician who made it testified as follows:

"I examined the thorax and found both lungs in a state of congestion and engorgement, indicating pneumonia in life. The left pleura was adherent, showing that an old pleurisy had existed. The heart was hypertrophied; the left ventricle being greatly thickened. The middle valve of the aorta had a calcareous deposit at its base which seriously interfered with the closing of the valve, making a permanent heart leak. The aorta just above the valve had a patch of calcareous degeneration in it about half an inch long, and there were several other smaller patches of calcareous degeneration near it in the vessels beyond. The liver was simply engorged with bile, there being an impacted stone in the cystic duct pressing on the common duct and a suppurating gall bladder. Both kidneys showed degenerative processes, the capsules peeling readily, and an abscess was found in the upper part of the left kidney ; constricted and encysted appendix. Other abdominal organs normal. From what I saw of the lungs and their condition, pneumonia had been present at the time of death. Pneumonia of both lungs of the degree observed, together with the weak and leaking heart, was practically of a fatal nature. In cases of serious pneumonia, a weak heart, or a heart such as that of the deceased, is a serious additional factor."

To find that Scott was a strong healthy man on the first day of November, 1902, involves the conclusion that he was a malingerer and a falsifier and that the physicians who certified to his disabilities were either charlatans or incompetents. On the contrary, the record shows that Scott was a hard working, conscientious, honest man and that the physicians were men of learning and high standing in their profession.

But, let it be assumed that there was sufficient dispute upon the testimony to warrant the submission of the question as to his previous health to the jury, how then stands the case? The entire fabric of the defendant's liability is built upon the theory that Scott received an injury on November 1, 1902, at Cuba, which caused his death. This is the keystone of the plaintiff's case; if it be removed the entire structure falls to the ground. We have searched the record in vain for evidence of such an injury or, indeed, of any injury, on that day. The plaintiff testified that when her husband left home on the last day of October he was in good health, with no wound on his leg and that when he returned at 4 o'clock on November 1st he appeared sick, feeble and weary. There was a bruise on his left shin five or six inches long and two or three inches wide; it looked red. Dr. McIntosh saw this bruise in November but did not examine it until December. He thus describes it:

“It was very much discolored. It looked as though the skin had been rubbed or jammed and quite badly discolored. The discoloration was up and down the leg. It might have been five or six inches in length and four or five wide, about that. It did not look as though there had been any tearing through the skin, to get down through the whole of the skin.”

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When, where or how this bruise was received does not appear. There is no proof that it was received at Cuba on November 1st. In fact the testimony of the trainmen is to the effect that Scott performed his duties as usual that day. He said nothing about an accident and they heard of none. The postal clerk at Hornellsville, in whose office Scott was required to register, saw him November 1st. He also saw him on his next trip, November 3d. He said he was going to Cattaraugus to vote. On the night of election day he went to Salamanca intending to take his usual trip in the morning. That night he was found at his boarding house, in Salamanca, by Dr. Bourne in a serious condition from which he was aroused by hypodermics of strychnine and digitalis. On the 6th of November he went to his home where he remained until December 18th, when he was taken to the home of his son, at Dunkirk, where he remained until his death.

In the hypothetical questions addressed to the medical experts the plaintiff's counsel assumes that Scott received an external injury on November 1st severe enough to produce shock which caused all the other ailments which resulted in his death. Indeed, the trial proceeded from beginning to end upon this theory, which would be plausible enough were not the major premise—injury through external, violent and accidental means—wholly lacking.

It is true that he had a bruise on his left shin, but everything else regarding it is left to conjecture. Instead of proving an injury received at Cuba on November 1st severe enough to produce shock, the presence of shock caused by the injury and nephritis and heart disease resulting from shock, the plaintiff's logic is in the inverse order. The argument proceeds on the following hypotheses—that death on January 25, 1903, was caused by diseases which may have been produced by shock, that shock may be caused by a severe external injury, that a bruise on the skin indicates an external injury, therefore Scott must have received such an injury on November ist at Cuba. It will be observed that there is a fatal hiatus between the fact that death occurred and the conclusion that it was caused alone by an external injury.

We are of the opinion, therefore, that the court should have directed a verdict for the defendant on the ground that the plaintiff had not sustained the onus of proving that Scott's death was caused alone by external violent and accidental means.

As there was no direct proof of this fundamental fact and as plaintiff's contention regarding it rested only upon presumption and guesswork, it was the duty of the court to direct a verdict for the defendant.

In Com’rs v. Clark, 94 U. S. 278, at page 28-1, 21 L. Ed. 59, the court say's:

"Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule; to wit, that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed." North Penn. R. Co. v. Com. Nat. Bank, 123 U. S. 727, 733, 8 Sup. Ct. 266, 31 L. Ed. 287; Anderson Co. Com'rs v. Beal, 113 U. S. 227, 241, 5 Sup. Ct. 433, 28 L. Ed. 966 ; Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780: Treat Mfg. Co. v. Standard Steel & I. Co., 157 U. S. 675, 15 Sup. Ct. 718, 39 L. Ed. 833; Cudahy Packing Co. v. Marcan, 106 Fed. 645, 45 C. C. A. 515, 54 L. R. A. 258; Penn. R. Co. v. Martin, 111 Fed. 586, 49 C. C. A. 474, 55 L. R. A. 361.

Even if it be assumed that there was an injury as alleged in the complaint it is doubtful if there was sufficient evidence to go to the jury upon the question whether or not the injury alone caused the death. The law on this subject is well stated in Masonic Ass'n v. Shyock, 13 Fed. 1971, 20 C. Č. A. 3, as follows:

"The burden of proof was upon the defendant in error to establish the facts that William B. Shyock sustained an accident, and that that accident was the sole cause of his death, independently of all other causes. If Shyock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with disease or infirmity, but died because the accident aggravated the effects of the disease, or the disease aggravated the effects of the accident, then the defendant is not liable, because the express contract was that the association should not be liable for the amount of the insurance, for in such a case death would not be the result of accident alone, but would be caused partly by the disease and partly by the accident."

The death being produced by Bright's disease assisted by valvular heart trouble it is difficult to perceive, in view of the prior difficulty with the heart, how it can be said that the injury alone caused the death. However, we prefer to rest the decision upon the entire absence of any competent proof of the happening of the alleged accident.

The judgment is reversed and a new trial ordered.


(Circuit Court of Appeals, Second Circuit. June 10, 1907.)

No. 222.


A bill in equity alleged that complainant owned certain stock and bonds of a railroad company; that defendant represented that he had contracted to sell a large amount of the stock and bonds of said company to another company and agreed to pay complainant the same prices he was to receive for his stock and bonds and for those of other holders which he might secure; that a written contract to that effect was entered into between them and carried out, but that such representations were false and fraudulent, in that defendant was to receive, and did receive, larger prices than those stated, the exact amount of which were unknown to complainant. Held, that such bill did not state a cause of action cognizable by a federal court of equity, complainant having on the facts alleged a complete and adequate remedy at law by an action to recover damages for the fraud, and the amount actually received by defendant being as readily ascertainable in such an action as in an equity suit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, § 156.]

Appeal from the Circuit Court of the United States for the Southern District of New York.

S. C. Carleton and Wm. J. Harding, for appellant.
Carter, Ledyard & Milburn, for appellee.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

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COXE, Circuit Judge. The salient allegations of the þill are as follows: That in July, 1892, the complainant stated to the defendant, who is the sole surviving partner of the firm of R. T. Wilson & Co., that he intended to bring an action, in which the said firm would be defendants, to contest the legality of the issue of certain bonds of the Louisville, New Orleans & Texas Railroad Company. That the defendant thereupon stated and represented to the complainant that he was the president of the said railroad company and that his firm was the owner and holder of a large portion of the capital stock and of certain bonds of the said road and that his firm had agreed with the Illinois Central Railroad Company for the transfer to it of the control of the said Louisville Company. That the firm of R. T. Wilson & Co. further stated that they were desirous of obtaining more bonds and stock of the Louisville Company than they then controlled to enable them to take advantage of their agreement with the Illinois Company and, for the purpose of inducing the complainant to part with his own bonds and stock and to procure the delivery of other like bonds and stock to the said firm, the defendant represented that only by dealing with his firm could complainant obtain more than $210 for each bond and $10 for each share of stock owned by him; which statement and representation was false and fraudulent. That thereupon the said firm offered the complainant, if he would refrain from bringing said suit, that they would pay

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him for his bonds and stock the same price that they were to receive from the Illinois Company for their own bonds and stock. That they also offered to pay him the difference between the price at which he procured the bonds and stock of third parties to be delivered to them and the price which they were to receive for their own bonds and stock from the Illinois Company—the names of various owners and the amount of their holdings being particularly mentioned. That relying upon these false and fraudulent statements and representations the defendant entered into an agreement with the firm, a memorandum of which was reduced to writing and signed by complainant and said firm.

This agreement states in detail the bonds and stock which are to be sold and delivered and the prices to be paid therefor and, with the exception of a few unimportant formalities, concludes as follows:

"The $24,000 is all that is to be paid Martin under this agreement, except such profit as Mr. Martin may make on the bonds and stock below 25 cts. for the bonds and 10 cts. for the stock.

"The bonds and stock are to be paid for, to parties bringing them in, from time to time at such prices under 25 cts. and 10 cts. as Martin may designate; and if paid for at less than 25 cts. and 10 cts. the difference is to be paid to him as they are delivered by the parties. It is agreed that not more than 25 cts. shall be paid for the bonds and 10 cts. for the stock, to any parties during the pendency of this agreement, except with the permission of Martin."

The bill alleges further: That, for a valuable consideration, the defendant and his firm warranted that the Illinois Company had agreed to pay the firm for the bonds and stock owned by them $250 for each bond and $10 for each share of stock; that relying upon the said representations and warranty the complainant delivered under the contract 1,095 bonds and 4,300 shares of stock and was paid therefor at the contract rate. That the said firm received from the Illinois Company more than they paid complainant for said bonds and stock and profited greatly by reason of their false and fraudulent statements, to an extent unknown to complainant. That complainant first discovered the fraud and the larger amounts received from the Illinois Company in January, 1903.

The complainant offers to return to the firm of R. T. Wilson & Co. whatever bonds and stock may be necessary to put the firm in the position they occupied prior to June 26, 1892. The bill invokes equitable relief because the extent to which the said firm have secretly profited by said transaction is unknown to complainant.

Alternative relief is demanded as follows: First, that a master be appointed to take an account; or, if mistaken in this relief, then, second, that the written contract be reformed so as to agree with the oral contract; or, if mistaken as to the right of the complainant to an accounting or to a reformation of the written contract, then, third, that the contract be rescinded and the defendant be directed to return all of the bonds and shares of stock transferred thereunder. Lastly, the complainant prays, if he be mistaken in all the foregoing prayers, that he may have such other or further relief as to the court may seem just and equitable. The defendant demurs on the ground that the bill shows on its face that the subject-matter of the suit is not within the juris

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