Caldwell v. Travelers' Ins. Co.

• Decision Date: 25 November 1924
• Docket Number: No. 23895.,23895.
• Citation: 267 S.W. 907
• Parties: CALDWELL v. TRAVELERS' INS. CO.
• Court: Missouri Supreme Court

267 S.W. 907

CALDWELL v. TRAVELERS' INS. CO.

No. 23895.

Supreme Court of Missouri, in Banc.

November 25, 1924.

Motion for Rehearing Overruled December 18, 1924.

1. Insurance 455—injury resulting from ordinary means voluntarily employed in a not unusual or unexpected way held not caused by "accidental means"; "means."

Under a policy insuring against death from bodily injuries effected through accidental means, death does not result through accidental means, if the result is such as follows from ordinary means voluntarily employed in a not unusual or unexpected way, but, if in the act which precedes the injury something unforeseen, unexpected, or unusual occurs which produces the injury, then the injury has resulted through accidental means; "means" being equivalent to cause.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Accidental Means; Means.]

2. Insurance 648(6)—Plaintiff has burden to show accidental death.

Plaintiff suing upon a policy indemnifying against death by accidental means has the burden to show accidental cause of insured's death.

3. Insurance 665(5)—Plaintiff in action or accident policy for death of insured during operation must show Unforeseen occurrence during operation which caused death.

In action on policy indemnifying against death by accidental means, where insured died from result of surgical operation, plaintiff must show that something unforeseen, unusual, or unexpected and unintended, occurring during progress of operation, caused insured's death; it not being enough that there be suspicion, guess, possibility, or speculation that something unexpected, unusual, or unforeseen occurred during such operation.

4. Insurance 665(5)—Evidence of death from consequences of surgical operation held not to show death through accidental means.

In action on policy indemnifying against death through accidental means, evidence that insured died from accidental thrombosis and intestinal obstruction, following operation for abdominal hernia as a result of necessary lacerations in course of operation, held insufficient to show death from accidental means.

5. Appeal and error 878(1)—Plaintiff's assignment of error not reviewable on defendant's appeal.

Plaintiff's assignment of error to order requiring involuntary election between causes of action, preserved by term bill of exceptions, is not reviewable on defendant's appeal, where plaintiff took no cross-appeal.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Clara Belle Caldwell against the Travelers' Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Jones, locker, Sullivan & Angert, of St. Louis, for appellant.

James J. O'Donohoe, of St. Louis, for respondent.

DAVID E. BLAIR, P. J.

This is an action upon two policies of accident insurance issued to Joseph S. Caldwell as the insured and payable in case of his death to his wife, Clara Belle Caldwell, as beneficiary. The petition was drawn in four counts. The first and second counts were based upon one policy, and the third and fourth counts were based upon, the other policy. The trial court required plaintiff to elect upon which count she would proceed, and she involuntarily elected to proceed to trial upon the second and fourth counts of the petition. The answer to said counts was a general denial. Trial by jury resulted' in a verdict for plaintiff upon the second count for $4,032.50 and upon the fourth count for $8,065. After unsuccessfully moving for a new trial, defendant appealed to this court.

No complaint is made of the sufficiency of the second and fourth counts of the petition, hence it is unnecessary to notice the same further than to say that the second count alleged the issuance of a policy of accident insurance to the insured, whereby defendant insured the life of plaintiff's husband in her favor for the principal sum of $2,500, with accrued accumulations of one-half of that sum, making $3,750 altogether, against death "from bodily injuries, effected directly and independently of all other causes, through external, violent, and accidental means alone within ninety days from date of said accident ; or, if injuries sustained in manner and form as aforesaid shall, independently and exclusively of all other causes, immediately, wholly and continuously disable and prevent Joseph S. Caldwell, the insured, from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability and within 200 weeks from the date of accident shall result in the death of Joseph S. Caldwell, to pay to, Clara Belle Caldwell, plaintiff herein, said principal sum of $2,500, together with the further sum as accumulations hereinafter stated."

It is then alleged:

"That on or about the 6th day of November, 1920, at Bethesda Hospital, in the city of St. Louis, state of Missouri, said Joseph S. Caldwell, the insured, was operated on for abdominal inguinal and umbilical ruptures or hernias, and in the operation accidental and unavoidable injuries were inflicted upon the abdominal organs, including the omentum, peritoneum, blood vessels, arteries, and intestines, consisting of such lacerations, cutting, and tearing of said organs as is the usual result of an operation for ruptures or hernias in the usual and customary manner by a skilled surgeon, such lacerations, cutting, and tearing usually being followed by no ill results, but plaintiff avers that accidental thrombosis and accidental intestinal obstruction followed from the operation and injuries aforesaid, and as a direct re-suit thereof the said Joseph S. Caldwell, the insured, died on or about the 11th day of November, 1920, and within 90 days from date of accident.

"And plaintiff further avers that the injuries aforesaid, independently and exclusively of all other causes, immediately, wholly, and continuously disabled and prevented Joseph S. Caldwell, the insured, from performing any and every kind of duty pertaining to his occupation from the date of accident, namely, the 6th day of November, 1920, to the date of his death, namely, the 11th day of November, 1920."

It is then alleged that plaintiff was the wife and is now the widow of insured, and that all conditions of the policy, including the payment of premiums thereon, were complied with; that plaintiff demanded payment and that defendant vexatiously refused to pay the amount due.

The allegations of the fourth count were substantially the same as those of the second count, except that the policy therein sued on was originally issued for $5,000, and that accrued accumulations amounted to $7,500 at the death of the insured.

The evidence offered by plaintiff tended to show that on November 6, 1920, the insured was operated upon for two hernias. Not only does the evidence show, but the petition alleges, that the operation was skillfully performed. There is no evidence of any mischance, slip, or mishap nor of any unexpected, unusual, or unforeseen occurrence during the performance of said operation. The operating surgeon testified that he could not do it any better if he should do it over, and that he did not think any one else could do it any better. No more injury by way of cutting or laceration was caused than was actually necessary in the performance of the operation. The operation was performed at the request of the insured.

Notwithstanding the uncontradicted evidence of the exercise of the highest skill and care in performing the operation, an obstruction of the bowel occurred, which concededly caused insured's death 5 days later, and after a second operation had been performed in a futile effort to save his life. It is not here necessary to detail the evidence which plaintiff claims tended to show that insured came to his death as the result of the first operation to relieve the hernias. Assuming, for the purpose of the point now to be discussed, that the obstruction of the bowel and ensuing death were the unusual and unexpected results of the operation thus skillfully performed, can plaintiff recover under the terms of the contract of the accident insurance policies here involved?

Before plaintiff can recover she must offer substantial evidence tending to show that her husband's death resulted "from bodily injuries, * * * through external, violent, and accidental means." No question Is raised as to the external and violent means. The sole question is what is meant by "accidental means."

It cannot be doubted that what the surgeon did in performing the operation at the request and under the employment of insured was the act of Insured, just as much as if insured had performed the operation with his own hands. This is true under the rule that what one does through another he does himself.

There are two clearly defined lines of cases on this question. One holds that where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen.

The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death.

Industrious counsel have cited an imposing array of cases from this and other jurisdictions. In number of cases cited respondent has far outdone the appellant. By actual count her counsel has cited 116 cases and text-writers to this point alone. Such a formidable array has challenged the interest and industry of the writer to undertake the laborious, although not entirely unpleasant, task of...