Cameron v. Massachusetts Protective Association

• Decision Date: 29 June 1925
• Parties: MAE A. CAMERON, RESPONDENT, v. MASSACHUSETTS PROTECTIVE ASSOCIATION (MASONIC PROTECTIVE ASSOCIATION), APPELLANT
• Court: Kansas Court of Appeals

275 S.W. 988

220 Mo.App. 780

MAE A. CAMERON, RESPONDENT, v. MASSACHUSETTS PROTECTIVE ASSOCIATION (MASONIC PROTECTIVE ASSOCIATION), APPELLANT

Court of Appeals of Missouri, Kansas City

June 29, 1925

Appeal from the Circuit Court of Saline County.--Hon. Ralph Hughes Special Judge.

AFFIRMED.

Judgment affirmed.

Rich Storts & Rich for respondent.

Lathrop Morrow, Fox & Moore, Geo. J. Mersereau and Richard S. Righter for appellant.

BLAND, J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action by the beneficiary under an accident insurance policy to recover for the death of her husband, Carl C. Cameron, the insured. There was a verdict and judgment in favor of plaintiff in the sum of $ 5788.50 and defendant has appealed.

The facts show that on the 25th day of August, 1921, the insured, a railway conductor employed by the Chicago & Alton Railroad Company, left Slater on a freight run to Booth, a short distance east of Slater; on that evening and also on the next morning, August 26th, insured's brakeman observed on the former's left forearm a small pimple or lump about the size of a lead pencil rubber. At that time there were no cuts upon the arm. The insured was "mashing it and rubbing it and fooling with it;" "he kept fooling with it, squeezing it." On the afternoon of August 27th the two made the same run and the brakeman again observed the lump on insured's arm but saw a change in it in that there was a cut "clean through the pimple." The cut seemed to be "a quarter to a half an inch long" and "on the level with the base of the arm;" the pimple was red and seemed to be inflamed, "it was more inflamed than it was before . . . and seemed to be sore;" "it apparently had been opened." At Booth insured bathed his arm in warm water and it was paining him "pretty bad." The brakeman wrapped the arm up with a "first aid" bandage. They left Booth about 4:30 A. M. Sunday, the 28th, and on the way back the insured struck his arm against the side of a coal car causing him to nearly faint. Insured went into the caboose and laid down; the brakeman again bound up the arm as striking the car had made it bleed. Insured remained lying down in the car until they reached Slater.

On the evening of the last-mentioned day insured went to the office of Dr. Duggins, a physician of Slater. Dr. Duggins examined the arm and observed a lump or pimple thereon which was inflamed and had thereon two lateral cuts that did not go through the skin. Another cut in the top of the pimple apparently had been made by sticking a knife or other sharp instrument into it to a depth of approximately one-sixteenth of an inch. The doctor told the insured to go home and apply hot applications. Insured complied with this direction but obtained no relief and was unable to resume work. Either on Monday or Tuesday, the 29th or 30th of August, insured again called at Dr. Duggins' office and at this time the arm looked "angrier" than it had on the previous visit, it was more swollen and more red. The doctor directed insured to continue the hot applications and stated that he would open the place as soon as "it was indicated." Insured continued to grow worse and on Thursday morning Dr. Duggins was called to insured's home and found him critically ill. The inflammation was greater and insured was suffering excruciating pain. He had cold sweats and chills, had pain in the arm and shoulder and there was some pain in the lower part of the right lung; his nervous system was "overwhelmed" and he was desperately ill. That evening Dr. Duggins called Dr. Sam Meade in consultation. They lanced the arm and continued the hot applications. They decided that insured should be sent to Kansas City to a hospital, which was accordingly done on Friday morning.

Dr. Neal, of Kansas City, was called to attend insured at St. Mary's hospital in that city and found insured critically ill; that he had a badly swollen and inflamed forearm, with a small opening caused by a scratch or cut. There was some evidence of consolidation of the lower right lobe of the lung. Dr. Neal lanced the place on insured's arm. "At the focus point" he observed some peculiar dots of pus of which he made "a smear" for microscopic examination and "a stab culture." The result of this culture was not known until after insured's death, which occurred on September 5, 1921, from pneumonia, there having been a rapid progression to a fatal termination. Various laboratory analyses were made of the pus which showed a diplococcus of the non-capsulated type and staphylococci, this examination having been completed prior to insured's death. And after his death the culture was completed showing the presence of anaerobic germs. This is a germ which causes what is commonly known as blood poisoning. It multiplies in the subcutaneous part of the flesh and will not grow in the presence of oxygen.

The evidence shows that when insured left Slater he was suffering from blood poisoning or "acute septic intoxication," a general septicaemia (blood poisoning) on the evening of September 1st. In the opinion of one of the doctors, he was suffering at that time from pneumonia in the lower right lobe of the lung.

Dr. Neal testified that an anaerobic germ was a virulent poisonous germ; that it gains entrance into the system through a break in the skin. Dr. Mead testified that in his opinion insured received the infection through the cut on his left forearm. One of defendant's physicians testified that the percentage of recovery from septicaemia caused by anaerobic germs is very small. An examination of deceased's sputum showed the presence of the non-capsulated type of diplococcus; Dr. Neal testified that the non-capsulated type of diplococcus was practically harmless, that the capsulated type is the one that causes ordinary pneumonia. Defendant's physician testified that the true type of pneumonia is caused by pneumococci germs. Dr. Neal testified that pneumonia means any inflammation of the lungs no matter how caused; that in his opinion the pneumonia, which was the terminal cause of insured's death, was brought about primarily as the result of the infection of insured's arm. He explained in detail how the germ could be carried from the region of the cut in the arm to the lung and there set up inflammation causing pneumonia.

The policy begins by stating that "this policy provides indemnity for loss of life, limb, sight, and time by accidental means or of time by disease, as herein limited;" that it insured deceased--

". . . against loss resulting from (1) bodily injuries effected directly and independently of all other causes by accidental means (excluding self-destruction, or any attempt thereat, while sane or insane) and due solely to external, violent and involuntary causes, and leaving visible marks upon the body; and (2) disability from disease."

After several pages of printed matter intervening, the policy states under the head of "Additional Agreements" that--

"H. This policy does not cover death due to disease, whether acquired accidentally or otherwise."

The petition alleges that insured died as the result of bodily injury on his left forearm--

". . . which injury was effected directly independently of all other causes by accidental means (excluding self-destruction, or any attempt thereat while sane or insane) and due solely to external, violent and involuntary causes, which left visible marks on his body, to-wit, on his left forearm, namely, by lancing or cutting a pimple or lump on his left forearm with a razor, or other sharp instrument unknown to plaintiff, on which razor, or instrument, were deadly germs, whose presence thereon was unknown to said Carl C. Cameron, which were thereby injected into his said arm resulting in his," etc., death.

Defendant's first point is that its instruction in the nature of a demurrer to the evidence should have been sustained for the reason that--

". . . deceased did not die as the result of bodily injuries effected directly and independently of all other causes by accidental means and due solely to external, violent and involuntary causes."

In discussing this point defendant states--

"For the purposes of the argument it will be assumed that respondent satisfactorily showed in evidence that her deceased husband did voluntarily lance a pimple on his arm with a razor or other sharp instrument and that the germs of blood poisoning were introduced into his arm by such instrument and finally that this condition of blood poisoning so weakened his system as to induce lobar pneumonia from which he died. . . .

"Cameron the evidence showed, had a pimple on his arm, which caused him great annoyance. Evidently for the purpose of obtaining relief from this condition he undertook to perform a minor operation upon himself."

The argument in support of the point is based upon the proposition that as the cut was intentionally inflicted by insured upon himself and as the cut was the means or cause of the blood poisoning and subsequent death of the insured there can be no recovery. There is some conflict in the decisions as to what is meant by "accidental means" within the meaning of an accident insurance policy. Some cases going so far as to hold that where the injury or death is the unusual, unexpected and unforeseen result of an injury intentionally made, such injury or death is by "accidental means," even though there is no proof of mishap, mischance or slip or anything out of the ordinary in the act or event which caused such injury or death. But the rule is now established in this State 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...