Zurich General Accident & Liability Ins. Co. v. Flickinger

• Decision Date: 01 July 1929
• Docket Number: No. 2845.,2845.
• Citation: 33 F.2d 853,68 ALR 161
• Parties: ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED, OF ZURICH, SWITZERLAND, v. FLICKINGER.
• Court: U.S. Court of Appeals — Fourth Circuit

68 ALR 161, 33 F.2d 853 (1929)

ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED, OF ZURICH, SWITZERLAND, v. FLICKINGER.

No. 2845.

Circuit Court of Appeals, Fourth Circuit.

July 1, 1929.

Vivian L. Page and Ivor A. Page, both of Norfolk, Va. (Reginald J. D. Page, of Norfolk, Va., on the brief), for appellant.

S. M. Brandt, of Norfolk, Va., for appellee.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment for the plaintiff on an accident insurance policy. A number of exceptions were taken by defendant during the trial, but only one of the assignments of error complies with rule 11 of the court. That assignment, however, which is directed to the refusal to direct a verdict for defendant, is sufficient to present for our consideration all of the points upon which defendant relies, viz. that the death of insured did not result from accidental means within the meaning of the policy, that his death resulted from violation of law, and that the policy was void because of false statements in the application as to his habits.

The insured, Samuel Peyton Flickinger, died as the result of drinking wood alcohol contained in gin cocktails served to him by a friend. The circumstances attending his death are brief and tragic. He had recently become engaged to be married, and with his fiancée was invited to attend a week-end party given in their honor by a friend in the city of Baltimore. This friend purchased what he thought was grain alcohol, and, with the addition of other ingredients, prepared synthetic gin cocktails, which were freely imbibed by the members of the party, including insured. On the following day, all who had partaken of the cocktails became violently ill, with symptoms of wood alcohol poisoning, and the illness resulted fatally to insured, his fiancée, and the wife of his host. The beverage which they had been drinking was analyzed and found to contain wood alcohol, and a post mortem examination of the body of insured showed conclusively that his death was caused by the poison contained in wood alcohol.

The policy sued on insured against loss of life "resulting from bodily injuries, * * * directly and independently of all other causes, through accidental means." And in the application for the policy, which was signed approximately two years prior to his death, insured represented that his habits of life were correct and temperate.

On the first and principal contention of defendant, we think there can be no question that the death of insured resulted from accidental means within the meaning of the policy. Insured intended, it is true, to drink the cocktails which he did drink and which caused his death, but he did not intend to drink poisonous wood alcohol, and did not know that wood alcohol was contained in what he was drinking. The case falls squarely, therefore, within the oft-quoted rule laid down by Mr. Justice Blatchford in the leading case of U. S. Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 759, 33 L. Ed. 60: "If in the act which precedes the injury something unforeseen, unexpected, unusual, occurs, which produces the injury, then the injury has resulted through accidental means." Here the act which preceded the injury was the drinking of the supposed intoxicating beverage. And the thing which was "unforeseen, unexpected or unusual" therein was the fact that it contained wood alcohol, a deadly poison. In other words, there was the unintentional and unexpected drinking by insured of a poisonous substance.

Judge Sanborn, speaking for the Circuit Court of Appeals of the Eighth Circuit, in Western Commercial Travelers' Ass'n v. Smith, 85 F. 401, 40 L. R. A. 653, laid down a definition of "accidental means" which has been approved by the Circuit Court of Appeals of the Second Circuit in Ætna Life Ins. Co. v. Brand, 265 F. 6, 13 A. L. R. 657, and by this court in the recent cases of Mutual Life Ins. Co. v. Dodge, 11 F.(2d) 486, 59 A. L. R. 1240, and Continental Casualty Co. v. Willis, 28 F.(2d) 707. Said he:

"An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, * * * is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means."

There would seem to be no room for argument that under this definition a death which results from unintentionally drinking wood alcohol while supposedly drinking an ordinary gin cocktail is a death from accidental means. The case is entirely unlike that of Calkins v. National Travelers' Ass'n, 200 Iowa, 60, 204 N. W. 406, 41 A. L. R. 363, for there the insured drank exactly what he intended to drink, and his death was the natural consequence thereof. This case falls within the class of cases involving the unintentional taking of poison, cases in which the insured intended to swallow what he did swallow, but was ignorant of the fact that it contained poison. Such cases, without exception, have been held to involve death by accidental means. Healey v. Mutual Accident Ass'n of the Northwest, 133 Ill. 556, 25 N. E. 52, 9 L. R. A. 371, 23 Am. St. Rep. 637; Travelers' Ins. Co. v. Dunlap, 160 Ill. 642, 43 N. E. 765, 52 Am. St. Rep. 355, and note; Carnes v. Iowa State Traveling Men's Ass'n, 106 Iowa, 281, 76 N. W. 683, 68 Am. St. Rep. 306, and note; 1 C. J. 427. And see, also, the recent case of Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A. L. R. 1521.

In Newsoms v. Commercial Casualty Ins. Co., 147 Va. 471, 137 S. E. 456, 52 A. L. R. 363, the death of insured was caused by eating...