Bloom v. Brotherhood Accident Co.

• Decision Date: 28 April 1925
• Docket Number: 6-1925
• Citation: 85 Pa.Super. 398
• Parties: Bloom v. Brotherhood Accident Company, Appellant
• Court: Pennsylvania Superior Court

85 Pa.Super. 398

Bloom v. Brotherhood Accident Company, Appellant

No. 6-1925

Superior Court of Pennsylvania

April 28, 1925

Argued March 11, 1925

Appeal by defendant, from judgment of C.P. Dauphin Co., Sept. T 1921, No. 162, in the case of Morris Bloom and Ethel Bloom by their next friend and mother, Sarah Bloom, v. Brotherhood Accident Company.

Assumpsit on a policy of insurance. Before Wickersham, J.

The facts are stated in the opinion of the Superior Court.

Verdict for the plaintiff in the sum of $ 2,335.66, and judgment thereon. Defendant appealed.

Errors assigned were, among others, refusal of defendant's motion for judgment non obstante veredicto.

Daniel H. Kunkel, for appellant. -- The death of the insured was not due to external, violent and accidental means within the meaning of the policy of insurance: Pledger v Businessmen's Accident Association, 288 S.W. 110; Stone v. Fidelity & Cas. Co. of N.Y., 133 Tenn. 672 182 S.W. 152, L. R. A. 1916 D. 536; Shanberg v. Fidelity & Cas. Co. of N.Y., 158 F. 1, 19 L. R. A. (N. S.) 1206; Standard Life & Acc. Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 49; Horsfall v. Pacific Mut. Life Ins. Co., 32 Wash. 132, 72 P. 1028; AEtna Life Insurance Company v. Robinson, 262 S.W. 118; Byrant v. Continental Casualty Co., 182 S.W. 673, L. R. A. 1916; E. 945, Ann. Cas. 1918 A. 517; McGlother v. Provident Mut. Acc. Co., 89 F. 685; Riley v. Interstate Businessmen's Acc. Assn., 152 N.W. 617; Smith v. Travelers Ins. Co., 219 Mass. 147, 106 N.E. 607, L. R. A. 1915 B. 872; Stacey's Executor v. Fidelity & Casualty Co., 143 F. 271, 5 L. R. A. (N. S.) 657; Pollock v. United States Mutual Acc. Assn., 102 Pa. 230; Carnes v. Iowa State Travelingmen's Assn., 106 Iowa 281, 76 N.W. 683.

John R. Geyer, and with him Samuel Levin and Paul G. Smith, for appellee.

The insured met his death through accidental means, and his beneficiaries were entitled to recover: 1 Corpus Juris, Accident Insurance, page 427, section 73; Pickett v. Pacific Mutual Life Insurance Co., 144 Pa. 79; North American Life and Acc. Insurance Co. v. Burroughs, 69 Pa. 43; Farner v. Massachusetts Mutual Acc. Assn., 219 Pa. 71; Lane v. Horn & Hardart Baking Co. Appeal, 261 Pa. 329; 7 A.L.R. 1131 annotation; Healey v. Mutual Acc. Assn., 25 N.E. 52; Mutual Acci. Assn. v. Tuggle, 28 N.E. 1066; Travelers Ins. Co. v. Dunlap, 43 N.E. 765; Metropolitan Acci. Assn. v. Froiland, 43 N.E. 766; Riley v. Interstate Businessmen's Assn., 76 N.W. 683; Dezell v. Fidelity & C. Co., 75 S.W. 1102; U.S. Mutual Accident Assn. v. Newman, 3 S.E. 805; Fehrer v. Midland Casualty Co., 190 N.W. 910; Jones v. Hawkeye Com. Men's Assn., 168 N.W. 305.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

LINN, J.

The plaintiffs, children of Barnett Bloom, deceased, have judgment on a verdict in their suit on an accident and health insurance policy issued by defendant, who complains that judgment n. o. v. was refused. While that is the single error assigned, defendant asserts that the court below misconstrued the policy in three respects, and that a correct interpretation of any one of them will require a reversal.

Decedent was insured " against personal bodily injuries received through external, violent and accidental means, leaving upon the body external marks of contusions or wounds visible to the eye (accidental drowning excepted) which alone, independent of all other causes, shall within ninety (90) days from the date of the accident cause loss of life . . . ." Then follow provisions specifying indemnity for certain disabilities, and for weekly payment for other bodily injury. There is also a clause entitled " Sickness Indemnity," providing for weekly payment on specific conditions, one of which is that there must be incapacity " for a period of not less than one day by sickness alone with a pronounced disease . . . ." Other paragraphs follow under the title " General Provisions," one, providing " It is agreed that sunstroke, freezing, carbuncles, boils, felons, lockjaw, abscesses, ulcers, orchitis, strains, blood poison, in any form (septic or otherwise), contact with gas or poisonous or infectious substances, hydrophobia, shall be classified as sickness . . . ."

As appellant's contentions are based on its construction of the quoted passages applied to the evidence, we observe the rule in passing on the motion for judgment n. o. v. requiring us to make the inferences from the oral evidence most strongly supporting the verdict and to discard what would be inconsistent with it.

Decedent's physician, desiring to subject him to an x-ray examination, gave him a written prescription calling for two ounces of barium sulphate -- an insoluble powder used in x-ray examinations -- directing him to take it in two glasses of milk in the morning and report for examination in the afternoon. He took the prescription to a pharmacist, who, as the verdict establishes, erroneously supplied a soluble salt of barium, -- a poison -- though labeled barium sulphate. Decedent took it as advised and shortly afterward became violently ill and died of the effects of it within 24 hours. Soon after taking the drug, he begun vomiting violently and continued to do so for a long time at frequent intervals -- one witness said " about every 8 minutes" ; his widow testified that on his throat he developed " a big lump" ; his son testified, " I saw on his throat [before death] there was a big projection here (?) and it was of a bluish color" ; his lips also then were blue and his body pale. No complaint is made of the charge to the jury so that we may assume -- and our reading of the charge seems to confirm it -- that the various theories of appellant as applied to the evidence was adequately put to the jury.

1. Was his death the result of " external, violent and accidental means" ? The verdict establishes that fact and the precedents are so numerous sustaining the conclusion that reference to some of them without discussion, is sufficient: Pickett v. Ins. Co., 144 Pa. 79, 91, 22 A. 871, (decedent asphyxiated in a well by gas not suspected there); Paul v. Ins. Co., 112 N.Y. 472, 20 N.E. 347 (asphyxiation); Eby v. Ins. Co., 258 Pa. 525, 102 A. 209 (death due to tooth brush bristles coming out during tooth brushing and causing choking and hemorrhage); Ins. Co. v. Burroughs, 69 Pa. 43 (strain caused by harvesting hay); McGlinchy v. Casualty Co. (Maine), 80 Me. 251, 14 A. 13, (strain or fright incident to restraining a runaway horse); Riley v. Accident Assn. (Iowa), 152 N.W. 617, (poison given by mistake of physician, although recovery was refused under an exception against " disability or death resulting from the voluntary or involuntary taking of poison" ); Christ v. Ins. Co. (Ill.), 312 Ill. 525, 144 N.E. 161, (drinking water polluted through defective valve designed to exclude it from the main); Casualty Co. v. Griffis, (Ind.), 186 Ind. 126, 114 N.E. 83, 84, (ptomaine poison from eating mushrooms supposed to be edible); Sutter v. Ins. Co., 215 Ill.App. 341 (eating tainted food supposed pure); ...