Brackman v. National Life & Acc. Ins. Co. of Tenn.

• Decision Date: 20 January 1942
• Docket Number: 17679.
• Court: Court of Appeal of Louisiana — District of US
• Parties: BRACKMAN v. NATIONAL LIFE & ACCIDENT INS. CO. OF TENNESSEE.

5 So.2d 565

BRACKMAN v. NATIONAL LIFE & ACCIDENT INS. CO. OF TENNESSEE.

No. 17679.

Court of Appeal of Louisiana. Orleans.

January 20, 1942

Rehearing Denied Feb. 16, 1942.

Writ of Certiorari Denied March 30, 1942.

Appeal from Civil District Court, Parish of Orleans; Wm. H. Brynes Jr., Judge.

F. Irvin Dymond and D. Douglas Howard, both of New Orleans, for plaintiff and appellee.

Porteous, Johnson & Humphrey and F. Carter Johnson, Jr., all of New Orleans, for defendant and appellant.

JANVIER Judge.

Mrs. Emma H. Brackman, designated beneficiary in two policies of life insurance issued by National Life & Accident Insurance Company of Tennessee on the life of her deceased husband, Richard Brackman, brings this suit on the two policies, alleging that her husband died from sunstroke while engaged at his usual occupation, and claiming an additional amount of $250 on each policy because of the so-called double indemnity feature of the policies in which it was stipulated that the additional sum would be paid if the insured "has sustained bodily injury solely through external, violent and accidental means * * * resulting in the death of the insured * * *." She also claims the penalty provided by Act No. 310 of 1910.

The defendant company filed an exception of no cause of action contending that though death resulting from voluntary exposure to the rays of the sun may be commonly and popularly referred to as an accidental death, it is not sufficient for recovery under the double indemnity clause that death be the result of accident, but it is required also that the means which produce the result be accidental. This exception was overruled and the insurance company filed answer, admitting all of the material allegations of the petition, but denying any liability for the amount claimed. Defendant also contended in its answer that having accepted the $500 payment referred to in her petition, plaintiff is estopped to contend that she should be paid the additional amount. In other words, that the acceptance of the $500 effected a compromise.

The matter was then submitted on an agreed statement of fact reading as follows:

"The National Life and Accident Insurance Company, Inc., an insurance corporation, issued two policies of insurance, Numbers LX 14378146 and LX 17208107, in which Richard Brackman was designated the insured, and plaintiff herein, Mrs. Emma Hawkins Brackman, widow of Richard Brackman, is the designated beneficiary, the originals of which policies are annexed hereto and made a part of this stipulation as if and as though copied herein in extenso.

"On June 10, 1938, while the insured, Richard Brackman, was engaged in the usual and normal course of his employment as a carpenter for the Works Progress Administration, while in good health he suffered, a sunstroke, from which he died. On the date of the said death both of the aforementioned policies of insurance were in full force and effect.

"The National Life and Accident Insurance Company, Inc. paid the principal amount of both of the aforementioned policies, namely, the sum of Two Hundred and Fifty Dollars ($250.00) on each, at which time plaintiff executed a death claim receipt, dated June 28, 1938, in the amount of Five Hundred Dollars and Seventy-Two Cents ($500.72), the original of which is annexed hereto and made part hereof as if and as though copied in extenso."

There was judgment for plaintiff for $500, with legal interest from the date of Brackman's death, and defendant has appealed, and in this court insists that the exception of no cause of action should have been sustained. The point which defendant seeks to make is that where in a policy providing for payment where death results from accidental "means", there is a distinction between the means which produce the result and the result itself; that in such case it is not sufficient to show that the death was unexpected or unforeseen but that it is also necessary that it appear that the means by which the death was caused was also unexpected or unforeseen, and that therefore where an insured has voluntarily and intentionally exposed himself to the rays of the sun, even though the ensuing sunstroke may be said to be accidental in the sense that it was unexpected or unforeseen, and therefore nothing accidental about the exposure to the sun. The distinction is a very fine one, and we are not at all certain that we, ourselves, clearly understand it, or that we could, under any given state of facts, determine with reasonable conviction just whether it is the means or the result which is accidental. But we are forced to recognize that there is a distinction because our Supreme Court has said so on at least two occasions and has based its conclusion on no less an authority than the Supreme Court of the United States. The latter court in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 54 S.Ct. 461, 462, 78 L.Ed. 934, 90 A.L.R. 1382, found itself confronted by facts which were very similar; there "the insured, while playing golf, suffered a sunstroke, from which he died." There were two policies. In each of them there was a stipulation concerning accidental "means". These stipulations were not identical but very, very similar. One read as follows: "If death should result directly and independently of all other causes from bodily injuries effected through external, violent and accidental means * * *."

The other, though slightly different, meant exactly the same. The court said: " * * * it is not enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average man--that the result of the exposure 'was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident,' see Lewis v. Ocean Accident & Guarantee Corp., 224 N.Y. 18, 21, 120 N.E. 56, 57, 7 A.L.R. 1129; see, also, Aetna Life Insurance Co. v. Portland Gas & Coke Co. [9 Cir.], 229 F. 552, L.R.A.1916D, 1027, for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result. The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental. The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself. Petitioner's pleadings do not suggest that there was anything in the sun's rays, the weather, or other circumstances external to the insured's own body and operating to produce the unanticipated injury, which was unknown or unforeseen by the insured."

In Parker v. Provident Life & Accident Insurance Co., 178 La. 977, 152 So. 583, 587, the Supreme Court of Louisiana recognized this distinction between the means which produce the result and the result itself, and held that in order that there be a recovery under a policy stipulation in which there is protection where the death results from accidental means, it is not sufficient that the result, that is to say the death, be accidental, but that it is necessary that the means be itself accidental, in the sense that it be unexpected and unforeseen. In the Parker case the insured was operating a jackscrew, and in pulling on the lever or handle, he suffered a hernia. The policy involved in that case was one against injury by accidental means and when Parker sued on that policy, the court held that there could be no recovery because although the result was unexpected, and therefore accidental, the means which produced the result was not unexpected or accidental. The court said:

"What we are asked to hold is that if an unforeseen, unexpected, unanticipated injury results from the doing of an act voluntarily and as expected, the doing of the act being the means by or through which the injury was caused, then the injury was caused by 'accidental means.'

"We cannot so hold. On the contrary we hold that unless there is an accidental element in the act which precedes and causes the injury, there can be no recovery under a policy which insures only against injuries caused by 'accidental means.' From this it does not follow that there can be no recovery in any case where the means by which an injury results is voluntarily commenced or begun. It frequently happens that unexpected, accidental elements intervene between the beginning of a voluntary act and the injury. In such cases, if the injury is traceable to the intervening, unexpected happening, and not to the doing of the act as intended, there may be recovery. To illustrate: The plaintiff in the present case voluntarily pulled on the lever of the jackscrew; he did precisely what he intended to do in the way he intended to do it; injury resulted. He cannot recover because the injury resulted from the doing of the act just as it was intended. The pulling on the handle of the jackscrew was the means by which the injury was caused. But there was nothing accidental about the means. He pulled just as he expected to. But if while pulling on the lever his foot had unexpectedly slipped, and due to the slip there had been an unforeseen, unanticipated increase in the strain on his body and the injury had resulted from the increased strain, he could have recovered, even though he was voluntarily pulling on the lever."

As we have said, our Supreme Court in that case placed Louisiana among those jurisdictions which recognize the distinction between accidental means and an accidental result, and that that decision is so interpreted is evident from a reading of a decision of the Supreme Court of Alabama rendered in the case of Adkins v. Metropolitan Life Insurance Co., 235 Ala. 417 179 So. 382, 385, in which that court said: "The Supreme Court of...