Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Cullen Ganey, Judge.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
The plaintiffs, beneficiaries of a life insurance policy, sued the defendant to recover under the double indemnity provisions of the policy. The beneficiaries recovered a judgment for the full amount sought. The defendant has appealed and the substance of its objection to the judgment lies in its assertion that the District Judge adopted an attitude deliberately inimical to the defendant and constituted himself an advocate for the plaintiff. Other grounds of error are alleged which will be discussed in this opinion, but the serious charge laid against the District Court will occupy most of our attention. In order that the circumstances of the case may be clear, it is necessary that this opinion contain a more detailed statement of facts than ordinarily would be warranted.
On June 24, 1927, Joseph Pierkowskie, Sr. bought a life insurance policy from the defendant which provided that double indemnity should " * * * be payable upon 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 means and occurred [sic] within ninety days after such injury." On July 4, 1940, at about nine o'clock in the evening, the insured, then sixty-six years old was struck by an automobile while crossing the street in front of his home. He was thrown about as high as the top of the car which struck him. Within a short time after the accident Pierkowskie was examined by Dr. Leo E. Pulaski, who had attended Pierkowskie from time to time from 1935 or 1936. Dr. Pulaski testified that Pierkowskie had sustained contusions of the head and scalp, bruises and a simple fracture of the bones of the right leg. Immediately after this examination Pierkowskie was taken to a hospital. He remained there for about three weeks and then was sent to his home. The fracture of the bones of his leg did not knit at that time. After returning home, Pierkowskie never left his bed. He developed hypostatic pneumonia and died on August 29, 1940.*fn1 So much for the accident and the circumstances immediately surrounding the death of the insured. It is necessary now to turn to circumstances antedating Pierkowskie's death by about eight years.
In 1932, the insurance company commenced to make payments to Pierkowskie for total disability under the terms of the policy here sued upon. These payments continued until his death.In May, 1932, Pierkowskie was examined by his physician, Dr. William T. Leach, in aid of Pierkowskie's application for disability benefits. Dr. Leach testified at the trial that it was his opinion at the time of the examination that the insured would be "permanently, continuously and wholly prevented from working for the rest of his life". This physician testified further that in 1932 he had deemed Pierkowskie's life expectancy to be short. The examination disclosed four plus albumin in the urine, nephritis, marked edema of feet and legs and some ascites. In 1933, Dr. Leach again examined Pierkowskie and found that he had diseases of both heart and kidneys. On February 27, 1934, Pierkowskie was examined for the insurance company by Dr. E. J. Cook. Pierkowskie was at home and in bed at the time of this examination. Dr. Cook found a definite enlargement of Pierkowskie's heart, signs of decompensation, epigastric tenderness, marked secondary anemia, shortness of breath and swollen feet. In 1935 Pierkowskie was again examined by Dr. Leach. In this examination Dr. Leach found that Pierkowskie was suffering from cardiorenal disease and from nephritis. On May 25, 1935, Dr. Roland C. Moyer made a complete physical examination of Pierkowskie for the insurance company. This examination, Dr. Moyer testified, disclosed chronic myocarditis and neurasthenia. None the less the physician predicted an improvement in the insured's condition. Dr. Leach made another examination of Pierkowskie in 1936 and again found him to be suffering from heart and kidney diseases. He certified again to the insured's continued permanent disability. On April 24, 1937, Dr. Moyer again examined Pierkowskie and found him suffering from cardiac decompensation, edema of both feet and nephritis. An urinalysis taken at this time was positive as to albumin. Dr. Moyer testified that Pierkowskie was so weak that the doctor was afraid Pierkowskie would die in his office.
In 1937, certain members of Pierkowskie's family filed a petition in the Court of Common Pleas of Schuylkill County to have the insured declared to be mentally incompetent and to have a guardian appointed for him and his property. Dr. Pulaski and Dr. John Conway testified for the petitioners at the hearing before the Court of Common Pleas. Their testimony in the case at bar as to the nature and extent of their evidence before the Pennsylvania court is vague and unsatisfactory. Dr. Pulaski stated that he had not kept any records as to Pierkowskie because "it wasn't a serious case. * * * " He thought that he had treated Pierkowskie from 1935 or 1936 until his death. He stated that at the time he made his first examination of Pierkowskie he found a mild form of myocarditis and moderate hypertension. Dr. Conway made no examination of Pierkowskie but simply accepted Dr. Pulaski's findings.
In 1937 Pierkowskie fell down the steps of his home and was taken to a hospital after this accident. The testimony concerning this accident and the decedent's condition following it is so incomplete that there would be no point in repeating it here except to state that his hospital record as of that time showed a diseased heart.
Dr. Moyer again examined Pierkowskie for the insurance company on May 21, 1940. Dr. Moyer testified that at this time he was scarcely able to walk and was very short of breath. Both of his legs were swollen and his heart was in a bad condition.
The foregoing is a synopsis of the testimony in respect to Pierkowskie's physical condition prior to the evening on which he was struck by the automobile.
As has been stated, Dr. Pulaski examined Pierkowskie immediately after he had been struck by the automobile and sent him to the hospital but Dr. Pulaski did not treat him while he was in the institution. He did call upon Pierkowskie from time to time while the insured was there. Pierkowskie was then under the direct care of Dr. John Burke, the hospital's assistant surgeon.Dr. Burke performed his service under the supervision of Dr. Leach, hereinbefore referred to. When the insured was brought to the hospital on the night of July 4, Dr. Burke found that he had sustained lacerations of the scalp, contusions of the legs and the fracture of a leg. He found also that Pierkowskie had marked edema from toes to waist. Dr. Burke found also that Pierkowskie was suffering from a very serious heart condition. The edema decreased considerably while Pierkowskie was in the hospital as was to be expected since he was either in bed or in a wheel chair. Dr. Burke testified that the edema could not have been caused by the accident. He did not treat or see the insured after he left the hospital. Dr. Burke testified that in his opinion Pierkowskie's death resulted directly or indirectly from the "illness or diseases" prior to his discharge from the hospital. In filling out the death certificate required by the insurance company, however, Dr. Burke answered the question, "What disease was the immediate cause of death?" as follows: "Laceration of scalp, fracture of right leg, tibia and fibula." In response to the question "From what other important diseases, if any, did deceased suffer?", Dr. Burke wrote "Myocardial decompensation".
Dr. Pulaski treated Pierkowskie from the time he left the hospital until his death. Following his return from the hospital on July 25, Pierkowskie developed a headache and an ear abscess. According to Dr. Pulaski, Pierkowskie's myocarditis showed no important change. The insured developed an edema of the scrotum and hypostatic pneumonia three or four days before his death. Dr. Pulaski testified that the pneumonia was due to the fact that Pierkowskie was in bed and that hypostatic pneumonia was a complication to be expected under such circumstances. He testified that Pierkowskie's death " * * * was due to an injury, a fracture of the right tibia and right fibula and hypostatic pneumonia." Dr. Pulaski was asked, "Was there a direct relationship between the hypostatic pneumonia that developed and the fracture that you have described?" He answered that, " * * * the hypostatic pneumonia was the result of the fracture." He testified also that Pierkowskie's prior infirmities had nothing to do with his death.
In addition to this medical testimony, Dr. Lester L. Bower, a gastroenterologist called by the defendant, testified that in his opinion the cause of Pierkowskie's death was his prior illness. Dr. Bower had not examined Pierkowskie.
Pierkowskie's son and daughter both testified that their father had not been gainfully employed for some time prior to 1932, but that until the accident of July 4, 1940, he had ...