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February 14, 1940


The opinion of the court was delivered by: KALODNER

This case was tried before the court and a jury which returned a verdict for the plaintiff.

Suit was on two policies issued by the defendant on the life of the plaintiff's deceased husband. The policies contained a provision for double indemnity in the event of accidental death by bodily injury. The provision read as follows:

 "If the death of the insured occurs while this policy is in force and such death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means within ninety days from the occurence of such accident, and if such accident is evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning and internal injuries revealed by an autopsy), and if such death does not result from suicide, while sane or insane, nor from military or naval service in time of war, nor from an aeronautic flight or submarine descent, nor directly or indirectly from disease in any form, the the company will pay a sum equal to the sum herein described as the sum insured in addition thereto."

 At the outset of the trial the defendant moved to dismiss the complaint on the ground that the plaintiff's statement failed to disclose a cause of action. The motion to dismiss was denied.

 Following the verdict the defendant moved (1) to set aside the verdict and to enter judgment in its favor in accordance with the motion to dismiss and (2) for a new trial on grounds of error in the court's charge which will hereafter be discussed and for plaintiff's alleged failure adequately to prove her case.

 A brief statement of the essential facts is appropriate prior to review of the defendant's motions.

 On the night of April 29, 1937, the deceased, a coal company executive, worked at his office until midnight. Accompanied by an assistant he left at that time and had a bite to eat. At about 12:45 a.m. the deceased, appearing in normal condition although somewhat tired, departed in his car for his home. On the way home the deceased's car collided with a parked auto, damaging both vehicles. He arrived home about a half hour later, appearing nervous and tired. He arose about 8 o'clock, left an hour and a half later, and then called on the owner of the parked car and told him to have the necessary repairs made. He then drove to his own repair shop and made arrangements as to his own car.

 The deceased returned to his home about 10 a.m. He then appeared in terrible pain and died within half an hour before the arrival of a physician.

 Dr. Wadsworth, Coroner's physician in Philadelphia; Dr. Wolferth, a heart expert; and Dr. Blackburn, the family physician who made out the death certificate, testified in plaintiff's behalf.

 Dr. Wadsworth performed an autopsy about three weeks after the deceased's death. In substance he testified that the autopsy disclosed a severe bruise on the left hand of the deceased; a bruise, two by six inches, on the deceased's chest; also that the latter's heart was a trifle oversize, that there was a collection of calcareous (limy) deposit on the wall of the anterior coronary artery which was itself somewhat reduced in size. He said that there was no indication whatever of an active disease process either in the heart or coronary artery or any kind of condition which could be considered as a complication in the cause of death. Dr. Wadsworth definitely diagnosed the cause of death as a result of a clot formed on the coronary artery -- the clot he said resulted from a blow on the deceased's chest. He emphasized that it was an injury on top of a pre-existing condition, not a disease, which was the cause of death.

 Dr. Wolferth, the heart specialist, testified that in his opinion the accident was the cause of the death.

 The defendant did not offer any testimony other than the proofs of death and the death certificate, as well as Dr. Wadsworth's report of his authopsy.

 As to the defendant's Motion to Dismiss: Both in its amended answer and by motion before trial, defendant moved to dismiss the complaint on the grounds that it failed to disclose a recoverable cause of action and that it did not state a claim upon which relief could be granted.

 The defendant has not waived its rights to the motion in question. Rule 12(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, states "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading". In effect, by virtue of the foregoing rule, in his answer, a defendant may present every defense that he possesses. Moore's Federal Practice, vol. 1, p. 648. Further, see Pesci v. Vieser (D.N.J.1938) 1 Fed.Rules Service, Sec. 12b.31, Case No. 1, to the effect that when a motion to dismiss is reserved in the answer, defendant may move to dismiss the complaint even after the filing of his answer.

 In the instant case, the motion was made after the filing of the answer but before trial. A similar motion was incorporated in the answer. Further, plaintiff does not argue waiver. It ...

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