Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before DAVIS and BIGGS, Circuit Judges, and WATSON, District Judge.
Upon November 20, 1925, the appellee issued an insurance policy to Weller, Geyser and Kronengold, doing business as "Tricho", insuring them for the period from November 20, 1925, to November 20, 1926.Upon November 20, 1926, another policy was issued by the appellee insuring them for the period from November 20, 1926, to November 20, 1927. Both policies were identical in terms and these terms will be dealt with in some detail in this opinion.
In November, 1924, Weller, Geyser and Kronengold made a contract with the appellant to remove superfluous hair from her neck, arms and legs by exposing these members to X-rays emanating from a "Tricho" machine.
At various times and at various intervals, from November 13, 1924, to December 3, 1926, the appellant received treatments from the assured. As a result of all of the treatments which she received, or some of them, the appellant was permanently injured about her neck, arms and legs by excess of X-rays. The condition induced in the appellant is difficult to describe in non-technical language, but it may be stated that her skin became parchment-like and leathery and her legs, arms and neck became marked permanently with red spots. The condition is described by the medical witnesses as "telangiectasis", a condition of dilation of blood or lymph capillary vessels or terminal arteries. The appellant instituted suit to recover damages for her injuries in the District Court of the United States for the Southern District of New York upon September 17, 1927. She procured a judgment in her favor in the sum of $25,000 with costs of $44.50 upon May 4, 1929. Execution was issued and was returned unsatisfied. No part of the judgment has been paid.
The policies of insurance were issued by the appellee to the assured in New York City. The treatments were there given to the appellant. The policies each contained the provision usually included in such contracts of insurance to the effect that the insolvency or bankruptcy of the assured should not release the insurer from the payment of the sum of the damages procured by judgment against the assured.
Upon November 13, 1930, the appellant brought suit upon her judgment against the insurer, the appellee in the present proceeding, in the Supreme Court of New Jersey. At the conclusion of the appellant's case a nonsuit was granted for insufficiency of evidence. From the judgment of nonsuit an appeal was prosecuted to the Court of Errors and Appeals, which affirmed it. Vander Veer v. U.S. Fiedelity & Guaranty Co., 113 N.J.L. 513, 174 A. 731. Within one year after such affirmance, namely upon March 14, 1935, the summons in the suit at bar was issued.
Upon trial the learned District Judge dismissed the jury ex proprio motu. Thereafter each party to the suit moved for a direction of verdict in her or its favor, subject however to exception taken by the appellant to the case being taken from the jury. The trial court granted the appellee's motion and final judgment was awarded to it. The appeal at bar is from this judgment.
Four questions are presented for our consideration. Three of them we conceive to present no new questions of law and therefore we will deal with them first. The fourth question, namely, the limitation of time upon the commencement of the appellant's action does present what we deem to be a new question and therefore its consideration is left to the last.
1. Was Notice Given to the Appellee in Accordance with the Terms of the Policies of Insurance?
Condition E of the policy provides that upon the occurrence of an accident " * * * the Assured shall give, as soon as reasonably possible notice thereof with the fullest information obtainable, to the Company at its Home Office or to a duly authorized agent of the Company. If a claim is made on account of such accident, the Assured shall give like notice thereof with fullest particulars. If thereafter a suit is brought against the Assured shall, as force such a claim the Assured shall, as soon as reasonably possible, forward to the Company as its Home Office every summons or other process as soon as the same shall be served on him." These provisions as to the notice required to be given by the assured to the appellee are substantially similar to the provisions ordinarily contained in such policies of insurance.
It does not appear to be seriously contended by the appellee upon this appeal that it was prejudiced because of lack of notice given to it in accordance with the terms of the policies. Dr. Weller testified that the summons and complaint in the New York suit were mailed to the appellee and that he and his co-partners were defended by counsel who appeared, according to his testimony, in behalf of the assured for the insurance company, albeit under a reservation of rights by the insurance company, and that the assured, cooperating with the appellee, turned over their records relating to the treatments of the appellant to the appellee who used them at the trial.
This point, we think, merits no further consideration and must be resolved in the appellant's favor. Matthews v. American Central Ins. Co., 154 N.Y. 449, 89 N.E. 751, 39 L.R.A. 433, 61 Am.St.Rep. 627; Lindblom v. Metropolitan Life Ins. Co., 210 App.Div. 177, 205 N.Y.S. 505; Biederman v. Commercial Casualty Ins. Co., 133 A. 772, 4 N.J.Misc.R. 591; Revell v. Columbian Protective Ass'n, 157 A. 553, 9 N.J.Misc. 1311.
2. Were the Appellant's Injuries "Accidentally Suffered" within the Meaning of the Policy?
The appellee contends, quite aside from questions arising as to the time of the occurrence of the injuries, that the injuries sustained by the appellant were not accidentally suffered by her by reason of her treatments, within the terms of the policies. The appellee refers to clauses V and VI of the policies which provide coverage only for claims for bodily injuries "accidentally suffered" and that such injuries must be sustained "by reason of accidents". Now there is no doubt that the appellant's injuries were caused by a too continuous application of X-rays. The injuries incurred by Mrs. Shaw, argues the appellee, were not "accidentally suffered" by her within the terms of the policies, but were the accidental result of treatments which she bought and paid for.
The appellee's argument in this connection may be stated as follows: Since the appellant intended to submit herself to the radiation applied by the assured by their Tricho machine, she did so, and the radiation from the Tricho machine being applied with the intention of applying it, her injuries were not accidental and therefore were not within the terms of the policy. The appellee contends that the principle enunciated by the Supreme Court in the case of Landress v. Phoenix Mutual Life Insurance Company, 291 U.S. 491, 54 S. Ct. 461, 78 L. Ed. 934, 90 A.L.R. 1382, relieves it of liability within the terms of the clauses of the policies referred to.
In the cited case the assured suffered a sunstroke while playing golf. He had two policies of insurance upon his life. The beneficiary of the policies sought recovery of amounts stipulated in one policy to be paid if death should result "directly and independently of all other causes from bodily injuries effected through external, violent and accidental means, and not directly or indirectly, wholly or partly from disease or physical or mental infirmity" [page 462], and in the other policy, if death should result "from bodily injuries effected directly and independently of all other causes through external, violent and accidental means." Mr. Justice Stone, delivering the opinion of the Supreme Court, distinguished between "accidental external means" and "accidental result". He stated:
"The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental. The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself. Petitioner's pleadings do not suggest that there was anything in the sun's rays, the weather, or other circumstances external to the insured's own body and operating to produce the unanticipated injury, which was unknown or unforeseen by the insured.
"We do not intimate that injuries resulting from as impalpable a cause as the inadvertent introduction into the body of noxious germs may not be deemed to be effected by external accidental means. See Western Commercial Travelers' Ass'n v. Smith (C.C.A.) 85 F. 401, 40 L.R.A. 653; Jensma v. Sun Life Assur. Co. (C.C.A.) 64 F.2d 457. Nor do we say that in other circumstances an unforeseen and hence accidental result may not give rise to the inference that the external means was also accidental. Compare Jensma v. Sun Life Assur. Co., supra; Gustafson v. New York Life Ins. Co. (D.C.) 55 F.2d 235. But, in the light of such knowledge as we have, no such inference can arise from the bare allegation of death by sunstroke, compare Pope v. Prudential Ins. Co. (C.C.A.) 29 F.2d 185; Ryan v. Continental Casualty Co. (C.C.A.) 47 F.2d 472, with no indication that some unforeseen or ...