Ansley v. Travelers Ins. Co.

• Citation: 173 S.W.2d 702
• Parties: ANSLEY v. TRAVELERS INS. CO.
• Decision Date: 09 March 1940
• Court: Supreme Court of Tennessee

Page 702

173 S.W.2d 702

ANSLEY v. TRAVELERS INS. CO.

Court of Appeals of Tennessee, Western Section.

March 9, 1940.

Petition for Certiorari Denied by Supreme Court June 29, 1940.

Appeal in Error from Circuit Court, Shelby County; Harry Adams, Judge.

Action by Elizabeth L. Ansley against Travelers Insurance Company on three life policies. From a judgment upon a directed verdict for defendant, plaintiff appeals in error.

Affirmed.

Earl King and H. W. Laughlin, Jr., both of Memphis, for plaintiff in error.

Emmett W. Braden, of Memphis, for defendant in error.

ANDERSON, Judge.

This action was based on the double indemnity provision of three life insurance policies, liability accruing by reason of other provisions having been settled. The pertinent language of each limited the coverage to death resulting "from bodily injuries effected directly and independently of all other causes through external, violent and accidental means within ninety days from the date of the accident which shall have caused such injuries and of which, except in the case of drowning or internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body * * *."

A former trial resulted in a verdict and judgment for the plaintiff which, upon appeal, we reversed, remanding the case for a new trial on the ground that while under the undisputed evidence the death of the insured resulted from a bodily injury effected by accidental means, it was not shown that the fatal injury was evidenced by a visible contusion or wound on the exterior of the body. Travelers Insurance Co. v. Ansley, 22 Tenn.App. 456, 124 S.W.2d 37.

Upon the second trial, which is under review, the sole issue was with respect to the existence of such evidence on the exterior of the body. At the conclusion of the plaintiff's proof the trial judge held that, in the light of our opinion upon the former appeal, there was no such evidence, and accordingly directed a verdict for the defendant. The plaintiff brought the case here by appeal in error.

There is no dispute in the evidence, and the sole question presented is whether; when it is viewed in the light most favorable to the plaintiff, it can be reasonably said that within the meaning of the language as used by the parties in making the contract, there was a "wound or contusion" on the exterior of the insured's body, evidencing the fatal injury.

The pertinent facts now before us are somewhat different from those presented on the former appeal.

The medical testimony was to the effect that insured died from "chloral bromide poisoning" resulting from the cumulative effect of a medicine known as "hypnotic compound," which he took for a nervous condition resulting from the drinking of intoxicants. The doctor who arrived upon the scene shortly before the death testified that he found the insured in a condition of shock, "and he had a pallor and a thready pulse"; that he called an ambulance and rushed him right over to St. Joseph's (hospital); that upon his arrival he was given adrenalin, artificial respiration and oxygen; and that "he died right on the table." This evidently occurred a few moments after insured reached the hospital.

The plaintiff, who is the insured's widow, testified that after taking the medicine he entered the bedroom and "fell face downward in his bed"; that "he said he felt like he had broken his leg"; that his face was "very pale, and his head was drawn back and his mouth wide open and his lips were swollen"; that his eyes were "glassy, sunk back in his head."

The driver of the ambulance in which he was carried from his home to the hospital, in response to the question, "Did you see any abrasion or contusion on him at all", testified that "on one of his legs, I believe it was on the left leg, a little scraped place or a little scratched place; none other than that except his lips were mighty blue". He further testified as follows:

"Q. What about his face, the color of his face? A. I guess you would call it — it was blue all over. His lips were dark, real dark blue, or purplish. I don't know how to explain it, I have seen so many in that — just like that, you see, where the condition is very bad. It showed bad circulation."

This was all of the material evidence on the determinative issues.

In support of her position, the plaintiff, as she did upon the former appeal, refers us to several cases from other jurisdictions dealing with policies of accident insurance containing provisions requiring in substance that the fatal injury be evidenced by a visible "sign or mark" on the exterior of the body and again urges upon us that there is no distinction between a policy provision of this kind and one making liability dependent on the injury being evidenced by a visible "contusion or wound" on the exterior of the body.

We concede again, as we did before, that there are cases which apparently hold more or less in accordance with the plaintiff's contention. These we considered before and have done so again. With due deference to the opposite view we are unable to adopt it and give to the language of the clause here in question a meaning as broad as that insisted upon by the plaintiff. Our reasons appear in the opinion rendered on the former appeal.

The commonly understood meaning of the noun, "wound", as given in Webster's New International Dictionary, Second Edition, is "An injury to the body of a person or animal, esp. one caused by violence by which the continuity, as skin, mucous membrane or conjunctiva is broken."

The same authority defines the verb, "contuse", as follows: "Formerly, to beat or pound together; now, to bruise; to injure or disorganize a part of without breaking the skin." The noun, "contusion", is defined as, "A bruise; an injury attended with more or less disorganization of the subcutaneous tissue and effusion of blood beneath the skin but without breaking the skin."

Our former conclusion upon this phase of the case was based in large part upon the logic of the opinions of the Federal Courts in the case of Paist v. Ætna Ins. Co., 3 Cir., 60 F.2d 476. The policy involved in that case had a provision similar to that under consideration. The insured's death was caused by sunstroke and the evidence relied upon to meet the policy requirement was to the effect that the insured's face was flushed and sunburned. As to the contention that this condition was a "contusion or wound", the District Judge, in his opinion, said: "It might be just possible to bring it under the definition of wound given by the Century Dictionary as the meaning of the word in medical jurisprudence and cited by the plaintiff, but in insurance policies courts have again and again refused to adopt technical definitions and have adhered to the ordinary and popular meanings of words used. There is no reason why this rule should not work both ways. Certainly, in ordinary parlance `contusion' is almost exactly synonymous with `bruise,' and to say that a flushed countenance is a wound would go beyond the limit of allowable interpretation." 54 F.2d...