Bennett v. Mutual Trust Life Ins. Co., 29453.

• Decision Date: 03 November 1944
• Docket Number: 29453.
• Parties: BENNETT v. MUTUAL TRUST LIFE INS. CO.
• Court: Washington Supreme Court

152 P.2d 713

21 Wn.2d 698

BENNETT v. MUTUAL TRUST LIFE INS. CO.

No. 29453.

Supreme Court of Washington

November 3, 1944

Rehearing Denied Dec. 6, 1944.

Department 2.

Action by Ernestine Bennett against the Mutual Trust Life Insurance Company to recover double indemnity under life policies. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with direction.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

Velikanje & Velikanje, of Yakima, for appellant.

Roberts Swanson & Tunstall, of Yakima, for respondent.

BLAKE Justice.

This is an action on two life insurance policies, of the face amount of $1,000 each, issued by defendant to one Boyd Bennett. The policies contain a stipulation for double indemnity for accidental death. The plaintiff is the widow of the insured and sues as the beneficiary under the policies.

Bennett underwent an operation for hernia on August 3, 1943. Within a few minutes after the completion of the operation, and while he was still on the operating table, he died.

Proofs of death having been submitted to it, the defendant paid the amounts of the face value of the policies, but denied double indemnity. This action ensued. Upon issue joined, the cause was tried to a jury, which returned a verdict for plaintiff. From judgment entered on the verdict, defendant appeals.

The question for determination is whether the death of the insured was accidental under the following provision of the policies: 'The additional sum payable as an accidental death benefit under this provision shall be due only upon receipt of due proof that the death of the Insured occurred in consequence of bodily injury effected solely through external, violent and accidental means of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, and that such death occurred within sixty days after such injury was sustained and as a direct result thereof, independently of any other cause, * * *'

Although there was evidence to the contrary, the jury was warranted in finding that the hernia, to correct which the insured underwent the operation, had its inception on July 24, 1943. The insured was a lieutenant in the Yakima fire department. On the day mentioned, he conducted a ladder drill for the instruction of recent recruits in the department. One of the ladders used was a thirty-five foot extension ladder weighing about two hundred pounds. It was what was known as a three-man ladder, that is, three men were ordinarily used in raising it: one heeling it at the butt the other two walking under it from the top end. The insured told the recruits, however, that, in case of emergency, the ladder could be raised by two men, and he proceeded to demonstrate by walking alone under the ladder from the top end while a man heeled it at the butt.

Within a short time--two of three days--the insured called the attention of several of his associates to a swelling in his groin. He had never complained of anything of the kind Before . Indeed, he had been an extraordinarily powerful man and accustomed to carrying more than his share of heavy work in the performance of his duties as a member of the department. That was manifested in his demonstration of how a 'three-man ladder' could be raised by two.

That the operation was proper and necessary treatment for the hernia, there can be no question. The operation was successfully carried through without mishap of any kind. From the standpoint of technique, it was completely successful. But the patient died. Under the evidence, the jury was warranted in finding that death resulted from a cerebral hemorrhage. A post-mortem autopsy was had. The physicians participating testified that death was more probably due to that cause then any other. In fact, by a process of elimination, they excluded all other causes of death except possibly a hypersensitiveness of the insured to the anesthetic. Such a cause of death, it seems, leaves no indications discoverable by post-mortem examination.

In the view we take of the case, however, it is immaterial whether the cause of death was a cerebral hemorrhage or the anesthetic--notwithstanding an allegation in the complaint that the insured suffered a cerebral hemorrhage. For, if an accident may be said to be the proximate cause of death, the stipulation contained in the policies is met; in other words, it is unnecessary to determine the precise pathological condition or change which occurred if death is the proximate result of an accident.

There was abundant evidence that the insured had sustained the hernia as a result of raising the ladder on July 24th. The jury was also warranted in finding that the operation was reasonably necessary to corrent the hernia. That, but for the operation, death would not have occurred at the time, place and in the manner it did, is obvious. If, therefore, the hernia was...