Canal-Commercial Trust & Savings Bank v. Employers' Liability Assur. Corporation of London, England

• Decision Date: 03 March 1924
• Docket Number: 24856
• Parties: CANAL-COMMERCIAL TRUST & SAVINGS BANK v. EMPLOYERS' LIABILITY ASSUR. CORPORATION OF LONDON, ENGLAND
• Court: Louisiana Supreme Court

99 So. 542

155 La. 720

CANAL-COMMERCIAL TRUST & SAVINGS BANK v. EMPLOYERS' LIABILITY ASSUR. CORPORATION OF LONDON, ENGLAND

No. 24856

Supreme Court of Louisiana

March 3, 1924

Appeal from Civil District Court, Parish of Orleans; Porter Parker Judge.

Action by the Canal-Commercial Trust & Savings Bank, tutor of the minors, Richmond and Allain D. Favrot, against the Employers' Liability Assurance Corporation of London England. Judgment for plaintiff, and defendant appeals, and plaintiff answers the appeal, claiming insufficient relief.

Affirmed.

Edward Rightor, of New Orleans, for appellant.

Dart Kernan & Dart and Lewis R. Graham, all of New Orleans, for appellee.

OPINION

ROGERS, J.

In the early morning of February 21, 1918, Henry L. Favrot was found dead in the bathroom of his home in the city of New Orleans. He was insured, at the time, against death by accidental means under a policy issued by the defendant company.

Mrs. Marie Richmond Favrot, wife of the assured, the beneficiary named in the policy, made due proof of loss to the insurance company. Subsequently she died, and her claim was inherited by her two minor children, issue of her marriage with her predeceased husband.

This suit was brought by the dative tutor of said minor children to recover $ 15,000 double indemnity under the aforesaid policy.

The trial was by jury, who returned a verdict in favor of plaintiff for $ 7,500. The court had charged the jury that the claim for double indemnity would not lie. Judgment was entered in accordance with the verdict, and defendant appealed. Plaintiff has answered the appeal, renewing its demand for double indemnity.

Defendant first filed an exception of no cause of action, which was overruled. We think the ruling was correct.

Plaintiff alleged that "defendant had issued its policy * * * against death from accidental and external means," and "that said insured * * * met his death through accidental and external means by being asphyxiated to death by gas."

Defendant argues that said allegations are insufficient to state a cause of action, because the policy, in express terms, limits recovery for the death of the insured to the case where said death was due to "bodily injuries sustained solely and independently of all other causes through external, violent, and accidental means." The contention is that the petition does not allege and show that insured's death occurred in the manner required by the policy.

It is provided, however,in section F of the insurance contract that:

"Any one of the following, namely sunstroke, freezing, hydrophobia or asphyxiation suffered through accidental means (suicide, whether sane or insane, is not covered) shall be deemed bodily injuries within the meaning of this policy." (Writer's italics.)

Under this definition of the insurance contract itself, the allegation of plaintiff that the insured "met his death by being accidentally asphyxiated to death by gas," is the equivalent of an allegation that the insured had suffered bodily injuries.

It was unnecessary for plaintiff to aver that the injury of insured was caused through violent and external means, for the facts as set forth, viz., accidental asphyxiation by gas, sufficiently disclosed that insured's death was caused by "external, violent, and accidental means."

Death by means of gas asphyxiation is necessarily death out of the usual course of nature -- an unnatural death; it is likewise external because it is inflicted by an outside agency. An unnatural death is a violent death. The word "violent" is defined as meaning "unnatural." Verbo, "violent, 2," Century Dictionary and Cyclopedia, vol. VIII, p. 6761, col. 1.

So that plaintiff's allegation of the insured's unnatural death as the result of accidental asphyxiation by gas clearly shows an external and violent agency as the cause.

We find nothing in the case of Feitel v. Fidelity & Casualty Co., 147 La. 52, 84 So. 491, cited by defendant, which is contrary to the views we have herein expressed.

In the cited case plaintiff brought suit on an accident policy awarding benefits for immediate, continuous, and total disability, Neither the allegations of, nor the facts set forth in, the petition showed the disability of plaintiff to have been immediate or that the injury averred (a slight scratch on the finger) was the exclusive cause of said disability. On the contrary, the facts as alleged clearly disclosed that plaintiff's disability did not follow immediately upon his injury.

Upon the overruling of its exception, defendant answered, denying seriatim the allegations of plaintiff's petition.

The issue as made up by the pleadings is exclusively one of fact. The suit being for the recovery under an accident policy, the death of the insured not being in dispute, plaintiff carried the burden of proving said death to have been due to accidental means. The jury, composed of 12 disinterested citizens, unanimously resolved the question of fact in favor of plaintiff. Their verdict was approved by the district judge, who overruled defendant's motion for a new trial. Our examination of the record has not convinced us that the jury and the district judge erred in their findings.

The evidence shows that on the morning of his death the insured arose a little before 6 o'clock, as was his custom, and went to the bathroom, where he engaged in his usual preliminaries for shaving. These, among other things, consisted of placing a pan of cold water, to be warmed, on a small gas plate, or stove, setting upon the washstand. This small stove was supplied with gas by means of a rubber tube connected to an outlet approximately 5 feet from the floor.

About an hour later the wife of the insured was awakened by the strong odor of gas, and upon making an investigation found that it emanated from the bathroom. Upon entering the bathroom she discovered her husband lying face down on the floor. The room was highly charged with gas flowing from the rubber tube above referred to. which had become disconnected from the little gas stove, and was suspended about 18 inches from the floor, with decedent's nose and mouth in the general direction of the detached end of the rubber tube.

The death of the insured could have occurred only in one of two ways; viz., from natural causes or from gas asphyxiation. If from the latter cause, it was either voluntary or involuntary.

Defendant's theory is that the insured died from natural causes, although throughout the argument made on its behalf runs the suggestion, which was not pleaded, that defendant committed suicide.

In support of the theory that the insured died a natural death, defendant relied upon some experiments which it had caused to be made to establish the lethal dose of carbon monoxide, the well-recognized poisonous element in illuminating gas, and upon some alleged admissions said to have been made by the wife of the insured to an agent or investigator of the defendant company on the day of insured's death.

This evidence, in our opinion, does not establish that the death of the insured was brought about by natural causes, especially when weighed against the countervailing evidence in the record tending to show that the decedent was deprived of his life by gas asphyxiation.

We are unable to place the same value upon the experiments in question as does counsel for defendant. These experiments do not amount to a demonstration. They must be considered, as is any other evidence, simply for whatever aid they may afford the court in arriving at a just conclusion.

The experiments were made more than three years after the death of the insured. They were made in the month of May, whereas the insured died in the month of February. The experimentalist was an engineer, not a gas expert. The...