Bukata v. Metropolitan Life Ins. Co.

• Decision Date: 08 May 1937
• Docket Number: 33349.
• Citation: 67 P.2d 607,145 Kan. 858
• Parties: BUKATA v. METROPOLITAN LIFE INS. CO.
• Court: Kansas Supreme Court

67 P.2d 607

145 Kan. 858

BUKATA v. METROPOLITAN LIFE INS. CO.

No. 33349.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

Death by heat stroke or heat prostration held result of bodily injury effected solely through "external, violent and accidental means" within provision of life policy for payment of additional indemnity for death occurring as result thereof.

In an action upon a provision in a life insurance policy to collect an additional amount if death occur in consequence of bodily injuries effected solely through external, violent, and accidental means, it is held that death by heat stroke or heat prostration is a death occurring in consequence of bodily injury effected solely through external, violent, and accidental means.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by Mary Bukata, alias Mary Bukaty, against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Edwin S. McAnany, Thos. N. Van Cleave, Willard L. Phillips, and Bernhard W. Alden, all of Kansas City, for appellant.

Fred Robertson, Edw. M. Boddington, and J. O. Emerson, all of Kansas City, for appellee.

HUTCHISON Justice.

The appeal in this case is taken by the defendant Insurance Company from the order of the trial court overruling its demurrer to the petition of plaintiff in an action to recover an additional portion of a life insurance policy on account of the death of the insured being accidental by a heat stroke or heat prostration. The appellant states that the one question involved in the appeal is as follows: "Is death resulting from being stricken with heat stroke or heat prostration as alleged, death occurring in consequence of bodily injury effected solely through external, violent and accidental means?"

The policy in this case insuring the husband of the plaintiff was a life insurance policy for $3,000 with two additional provisions: The first for $1,500 more or $4,500 "if death occur before the insured has attained sixty years of age"; and the other was for $1,500 additional, or $6,000 "if, before the Insured has attained sixty years of age and before the allowance of any Disability Benefit, death occur in consequence of bodily injury effected solely through external, violent and accidental means, provided that such death occur within sixty days after such injury independently and exclusively of all other causes."

The petition set out a copy of the policy, alleged the payment of the premiums and that death occurred before the insured arrived at the age of sixty years, and further contained the following allegations: "On the 20th day of July, 1934 and while the said insurance policy was in full force and while said Michael Bukata had no active disease and in fact no disease at all, and while he was resting at his home at 226 North Early Street in Kansas City, Kansas, he was violently, suddenly, unexpectedly and without intention on his part stricken with heat stroke, otherwise called heat prostration, by reason of which and as a part thereof he at once became and remained insensible, unconscious and highly feverish for about two hours and died at about four P. M. of the same day in Kansas City, Kansas. His death was effected solely by the bodily injuries produced by and a part of the said heat stroke or heat prostration."

The defendant paid the $4,500 but declined to pay the last $1,500 on the accidental feature.

The only Kansas case cited on the principal question involved is Continental Casualty Co. v. Johnson, 74 Kan. 129, 85 P. 545. The policy involved in the Johnson Case was for loss of time on account of an accidental injury, and it contained the word "sunstroke," and stated that "necessary exposure while engaged in his occupation shall be deemed to be due to external, violent and purely accidental causes and shall entitle the insured to full benefits according to the terms of this policy." The decision took the advance step by no longer considering sunstroke as a disease and recognized the new phrase "heat stroke" as equivalent to "sunstroke," and in the opinion it was further stated: "The provision of the policy is that sunstroke 'shall be deemed to be due to external, violent and purely accidental causes' and shall entitle the insured to indemnity at the full rate. It is argued, not without plausibility, that this language points to a conception of sunstroke as something of sudden and unexpected occurrence more or less in the nature of an accident, and that this conception is only appropriate to an attack brought on by exposure to the sun's rays. But prostration resulting from heat emanating from a furnace may be as swift in its development and as startling in its effects as though it were occasioned by hot and humid weather. In each case there would be present some of the features of an accidental injury, but neither would justify a recovery upon an ordinary accident policy." 74 Kan. 129, at page 135, 85 P. 545, 6 L.R.A (N.S.) 609, 118 Am.St.Rep. 308, 10 Ann.Cas. 851.

There was in that case in addition to the effect of the heat of the sun the artificial heat from a forge or furnace, the insured being then engaged in the occupation of a flue-welder. This Johnson Case differs from the case at bar in three important particulars: First, the action was brought by the insured for disability; second, the word "sunstroke" was contained in the policy; and, third, the heat producing the injury was artificial heat from a furnace.

The Johnson Case has been frequently cited and made a basis of comment in many cases in other states and in annotations. In 17 A.L.R. 1200 extended comment with approval is made particularly as to an artificial means. In the case of Farmer v. Railway Mail Ass'n, 227 Mo.App. 1082, 57 S.W.2d 744, it was cited with approval where there was artificial heat and the word "sunstroke" was not included in the policy, but the heat prostration of a postal clerk was held to be an accident. In the opinion it was said: "That sunstroke results from the application of an external physical force can hardly be questioned. The action of the heat rays of the sun upon the body directly or indirectly is as much the action of a physical force as is the blowing of the wind. So that sunstroke, with respect to the manner of its infliction, has all the characteristics of an injury." 227 Mo.App. 1082, at page 1086, 57 S.W.2d 744.

Another reference to the Johnson Case was made in Ridgeley Protective Ass'n v. Smith, 42 Ohio.App. 417, 182 N.E. 345, where the policy was a life insurance one with additions but did not contain the word "sunstroke," and a workman suffered from heat prostration in handling hot iron, resulting in death. It was there held that his death was not the result of an accidental injury due to violent and external causes. There was also in this case the feature of heart disease which it is said should have admonished the insured to have avoided the extreme temperature necessary for the handling of hot iron which he was doing.

The Johnson Case was also cited in the case of Higgins v. Midland Casualty Co., 281 Ill. 431, 118 N.E. 11, where a policeman in his regular line of duty suffered sunstroke. There the word "sunstroke" was included in the policy, and it was held to be under the protection of such accident insurance, it being an accident and not the natural and probable consequence of his course of action.

The case was also cited in Schumacher v. Great E. C. & I. Co., 197 N.Y. 58, 90 N.E. 353, 27 L.R.A. (N.S.) 480, in an action on an accident insurance policy which not only contained the word "sunstroke" but other words denoting blood poisoning, from which he died, and it was held that the special provision made the insurance company liable.

In the case of Elsey v. Fidelity & Casualty Co. of New York, 187 Ind. 447, 120 N.E. 42, L.R.A.1918F, 646, the Johnson Case was cited, it being an action on an accident policy which contained the word "sunstroke," and it provided for disability in the way of weekly indemnity where the insured was disabled while riding on an open street car by the direct rays of the sun, and the company was held liable.

The Johnson Case was also cited and commented on in the case of Continental Casualty Co. v. Clark, 70 Okl. 187, 173 P. 453, L.R.A.1918F, 1007, which was an action on an accident policy which provided for sunstroke. The insured was driving in the country on a dry, hot day. He had gone about six miles and upon the completion of the journey suffered sunstroke from which he died in a few days, and it was held that the company was liable under the contract.

The Johnson Case itself is set out in full in 6 L.R.A. (N.S.) 609, and in 118 Am.St.Rep. 308. It is also cited in the notes of Corpus Juris and Ruling Case Law. It is admitted that although the Johnson Case is not exactly applicable, yet no other Kansas decision more nearly approaches a solution of the question involved in the case at bar.

The word "sunstroke" is definitely mentioned in the policies involved in the following cases cited in the briefs in this case: Continental Casualty Co. v. Pittman, 145 Ga. 641, 89 S.E. 716; Harris v. Maryland Casualty Co. (D.C.) 2 F.Supp. 188; Continental Casualty Co. v. Clark, supra; Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S.W. 673, L.R.A. 1916E, 945, Ann.Cas.1918A, 517; Pack v. Prudential Casualty Co., 170 Ky. 47, 185 S.W. 496, L.R.A.1916E, 952, and Elsey v. Fidelity & Casualty Co. of New York, supra.

A similar situation is noticeable in the case of Mather v London Guarantee & A. Co., 125 Minn. 186, 145 N.W. 963, where the accident policy specifically provided that it did not cover sunstroke and a number of other causes of injury or death, but the word "...