Hartford Accident & Indemnity Co. v. Douglass

• Decision Date: 06 October 1954
• Docket Number: No. 14766.,14766.
• Citation: 215 F.2d 201
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. DOUGLASS.
• Court: U.S. Court of Appeals — Fifth Circuit

215 F.2d 201 (1954)

HARTFORD ACCIDENT & INDEMNITY CO. v. DOUGLASS.

No. 14766.

United States Court of Appeals, Fifth Circuit.

August 12, 1954.

Rehearing Denied October 6, 1954.

Howard Barker, Cantey, Hanger, Johnson, Scarborough & Gooch, Ed Reichelt, Fort Worth, Tex., for appellant.

F. Bert Walker, Richard F. Martin, Aubrey G. Alexander, Alexander & Martin, Thompson, Walker, Smith & Shannon, Fort Worth, Tex., for appellee, Alcyone Ross Douglass.

Before STRUM, Circuit Judge, and DAWKINS and HOOPER, District Judges.

DAWKINS, District Judge.

Defendant below appeals from a judgment for the appellee on an accident insurance policy dated January 10, 1917, insuring the husband, F. A. Douglass, against death "caused directly and exclusively by bodily injury sustained, solely and independently of all other causes, through accidental means" (emphasis added). Appellee was named as the beneficiary and Douglass died December 20, 1951. On that day Mrs. Douglass brought home a crate of grapefruit in a station wagon and Mr. Douglass arrived sometime later. About 6:30 p. m., they had a highball, followed by a heavy meal, and, at approximately 9:00 o'clock, a friend, Mr. Davidson, came for a visit. As he prepared to leave shortly before 10:00 o'clock, Mrs. Douglass suggested he take some of the grapefruit, which was still in the station wagon. The three started for the garage, but Mrs. Douglass and Davidson stopped momentarily discussing something of mutual interest, and when they reached the garage the crate, weighing some 80 to 90 pounds, was on the floor. Mr. Douglass was standing upright beside it and as they entered, said: "That crate was the biggest I ever got hold of" or "the heaviest I have ever lifted".

The weather was quite cold, Davidson's car would not start, and Douglass, in his station wagon, pushed it for some distance. Davidson gave his version as to what happened as a witness for appellee.¹

As soon as Douglass had been returned to his home, the family physician, Dr. Barcus, was called and arrived in about 15 minutes. The pertinent parts of his testimony appear in footnote.²

Doctor Barcus stated Douglass had no previous history of heart disease and gave it as his opinion the rupture was caused by the strain of lifting the grapefruit. In responding to the call this doctor took with him his brother-in-law who lived in the former's home, Dr. White, who agreed with Barcus that death was caused by rupture of the aorta.

In the death certificate Dr. Barcus reported that deceased was manually pushing Davidson's car from the ground or street, but later learned he was using the station wagon. The doctor then concluded that the death had been caused by lifting the crate to the floor of the garage. He conceded that the blood vessels could have ruptured and caused death even while deceased was sitting in a chair and that such vessels grow weaker with age. Mr. Douglass was somewhere between 63 and 65 years of age. Dr. Barcus recommended an autopsy but Mrs. Douglass refused and the body was cremated. This witness further stated there were no marks of physical injury on the body. This completed the medical testimony on behalf of appellee.

Dr. Andujar, who qualified as an expert, testified on behalf of appellant, expressing the opinion that Douglass was suffering from arterial sclerosis when the accident happened.

The vital question before the lower court and here is the meaning of the phrase "through accidental means" as distinguished from "accidental death". There was no visible evidence of any injury on the body of deceased, or that the crate of grapefruit had slipped or fallen, causing him to grab it in an unusual manner or that it had struck the deceased, or that anything else had happened out of the ordinary. Apparently the injury was caused by the strain of lifting the 80 to 90-pound crate from the station wagon to the floor of the garage. The only other possibility was the effort to get Davidson's car started, but the doctors apparently attached little or no weight to that incident. In any event, it would appear that both acts were voluntarily and intentionally done.

The question thus presented appears to have caused more confusion in the jurisprudence than would be expected. There is also great divergence in the decisions throughout the country, including the State of Texas, where the present case arose. There are likewise variations in the wording of policies which generally conclude with the phrase "accidental means". In some the expression is substantially as used in the present case, whereas in others, the words "external" and "violent" are included, but there is little indication that the courts have given much consideration to these differences. At times it would appear that some courts rely on the rule that since the language was chosen by the insurer, it should be construed more strongly against it. Some have reached their conclusions "by a hair", while others followed suit where the head was entirely bald.

In the early case of United States Mutual Accident Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 758, 33 L.Ed. 60 (decided in 1889), three doctors, after visiting a patient near-by, were returning to a drug store, and to save time, took a short cut by way of an elevated platform. Apparently there were no steps to descend and they each jumped the four or five feet to the ground. The first two physicians made it all right, but the third had his duodenum ruptured and died. The latter carried a policy with the appellant in that case insuring against death from "`bodily injuries alone, effected through external, violent, and accidental means'". (Emphasis supplied.) The appeal was from a verdict and judgment in favor of the appellee beneficiary and the alleged error was as to the charge to the jury by the trial court.

The deceased was a young man 31 years old, about six feet tall, weighing between 160 and 175 pounds and "was in good health". One of the two doctors testified:

"`Just after we had jumped, Dr. Barry jumped, and he came down so heavy that it attracted our attention, and we both turned around, and we both remarked that it was a heavy jump, and I asked him, "Doctor, are you hurt?" and he said, "No; not much." I have an indistinct recollection of his leaning against the platform when he jumped, but not sufficiently to state positively. If I were to jump I would jump and strike on my toes, and, if I had any distance to jump, would allow my knees to give. The way Dr. Barry came down, it sounded to us as if he came down solid, on his heels, so much so that we both turned around and remarked, "Doctor, you came down heavily." And I asked him, "Are you hurt?" and he said, "No; not much." I heard the noise. It was a singular jump, and sounded like an inert body. We then went with him to the drug store.\'" 131 U.S. 104, 9 S.Ct. 757.

The pertinent parts of the charge are quoted in footnote.³

In disposing of the exception to the charge, the Supreme Court said:

"3. It is further urged that there was no evidence to support the verdict, because no accident was shown. We do not concur in this view. The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed, not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term `accidental\' was used in the policy in its ordinary, popular sense, as meaning `happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected;\' that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that 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. The jury were further told — no exception being taken — that in considering the case they ought not to adopt theories without proof, or substitute bare possibility for positive evidence of facts testified to by credible witnesses; that where the weight of credible testimony proved the existence of a fact, it should be accepted as a fact in the case; but that where, if at all, proof was wanting, and the deficiency remained throughout the case, the allegation of fact should not be deemed established." 131 U.S. 121, 9 S.Ct. 762. (Emphasis supplied.)

Many, many cases have been cited, some of which involve only accidental death and others involved death by "accidental means".

In Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S.W. 673, 674, L.R.A. 1916E, 945, involving a sunstroke, the Supreme Court of Texas (in 1916) quoted with approval much of the above language from the Barry case. The pertinent expression was a rather long and involved clause of the policy that the insurer would be liable for injury or death "`which is effected directly and independently of all other causes through external, violent and purely accidental means * * *'". After the quotation from the Barry case, the Texas Court said:

"Upon the admitted facts, was the sunstroke suffered by Perry, the assured, under this clearly stated general rule, an accident? It was, undoubtedly. He was at the time walking the streets in the ordinary way, unconscious of any danger from the heat of the sun, as is to be plainly inferred from the stated facts, with apparently no apprehension of injury from that source, and a sunstroke suddenly befell

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