JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY OF BOSTON, MASSACHUSETTS, Appellant, v. Jeanne D. CRACK, Appellee, 216 F.2d 805

PER CURIAM.

This is an appeal from a judgment for plaintiff on the double indemnity feature of a life insurance policy which provided : “Benefit: The Company hereby agrees * * * to pay * * * to the beneficiary * * Additional Benefit of Five Thousand Dollars upon receipt * * * of due proof * * * showing that (1) the Insured’s death was caused directly, independently and exclusively of all other causes, by a bodily injury sustained solely by external, violent, and accidental means or, if death resulted from a disease caused by such a bodily injury, that such disease was the sole, direct and immediate result of such injury and had its inception within thirty days from the date on which such bodily injury was sustained as aforesaid, * * * “Exceptions and Exclusions: No such Additional Benefit will be payable * * * if death results, directly or indirectly, wholly or partially, (1) from any bodily * * * disease or infirmity, * * * ” The facts are that the insured, while walking along a pier on the waterfront in Washington, D.

C. accidentally stumped his toe on the planking and fell over the side of the pier into the Potomac River and was drowned. He swam for about 40 feet after falling into the river, but away from the pier, and then sank and was seen no more until his dead body was later recovered. A post mortem examination showed that death was due to drowning, but it also showed a diseased condition of the heart and arteries and gave indication that the insured had suffered a coronary attack.

The case was heard by the judge below without a jury and he found for plaintiff on the ground that the cause of death was drowning as a result of the accidental falling into the river and that insured’s heart condition was a mere condition and not a contributing cause of his death. As to this the judge said: “* * * the fall into the water ‘independently and exclusively’ caused Clarence Crack’s death — his death did not result ‘wholly or partially from any bodily * * * disease or infirmity’.

His heart disease was not a cause but a remote condition. * * * Admittedly accidental, decedent’s headlong pitch in the darkness into a sudden and desperate battle for his life against frigid waters of channel depth, while weighted down with heavy winter clothing, was so predominantly and overwhelmingly the cause of his death as to render his heart ailment a mere circumstance. The fall was in .and of itself sufficient to account for his death. Moreover, that there was any other factor contributory to it is at best a deduced possibility.

Surely, it cannot be said that the trier of the facts, judge or jury, would not have ample evidence here to find that the fall was alone the cause of death.” Appellant argues that a coronary attack following the fall into the water rendered the insured incapable of swimming and that this contributed to his death. The trial judge, however, found that this was a mere possibility and that the cause of death was drowning caused by the accidental plunge into the water. There is nothing in the record which would justify us in disturbing this finding.

Even if insured suffered a coronary attack which prevented his swimming, it is clear that he died, not of the heart attack, but of drowning; and the heart condition resulting in the inability to swim would no more bar recovery than would any other condition resulting in such disability. If, for example, insured had been suffering from partial paralysis so that he was unable to swim and had accidentally fallen into water and been drowned, no one, we think, would contend that the paralysis was the cause of death, so as to remove it from the coverage of the policy.

The paralysis there would be a mere condition, not the cause of death, and the same is true of the heart condition here even if it resulted in inability to swim; but, as stated, the judge found this a mere possibility and, as there is no basis for disturbing this finding there is no occasion to go into the matter further. The Virginia law on the subject of death by accidental means is well set forth in Ocean Accident & Guarantee Corp. v. Glover, 165 Va. 283, 182 S.E. 221; Crowder v. General Accident, Fire & Life Assur. Corp., 180 Va. 117, 21 S.E.2d 772; and Newsoms v. Commercial Casualty Ins.

Co., 147 Va. 471, 137 S.E. 456, 52 A.L.R. 363. See also American National Ins. Co. v. Belch, 4 Cir., 100 F.2d 48. Affirmed.