Christ v. Pac. Mut. Life Ins. Co.

• Decision Date: 16 June 1924
• Docket Number: No. 15631.,15631.
• Citation: 312 Ill. 525,144 N.E. 161
• Parties: CHRIST v. PACIFIC MUT. LIFE INS. CO.
• Court: Illinois Supreme Court

312 Ill. 525

144 N.E. 161

CHRIST

v.PACIFIC MUT. LIFE INS. CO.

No. 15631.

Supreme Court of Illinois.

April 14, 1924.

Rehearing Denied June 16, 1924.

Error to Appellate Court, Third District, on Appeal from Circuit Court, McLean County; Edward Barry, Judge.

Action by Anna Christ against the Pacific Mutual Life Insurance Company. From a judgment of the appellate court affirming a judgment for plaintiff, the defendant brings certiorari

Affirmed.

Duncan and Thompson, JJ., dissenting.

Livingston & Whitmore, of Bloomington, and Wilson, McIlvaine, Hale & Templeton, of Chicago (Sigmund Livingston and J. F. Dammann, Jr., both of Chicago, of counsel), for plaintiff in error.

Richard M. O'Connell, of Bloomington, for defendant in error.

DUNN, J.

A writ of certiorari was awarded the Pacific Mutual Life Insurance Company to bring before us for review the record of the Appellate Court for the Third District by which a judgment recovered in the circuit court of McLean county by Anna Christ against the petitioner for $1,130 was affirmed. The action in the circuit court was assumpsit upon a policy of insurance called a railway special accident and health policy. The policy stated in its commencement that it ‘provides indemnity for loss of life, limb, sight, or time by external, violent and accidental means, and for loss of time by sickness, to the extent herein provided,’ and insures William H. Christ, as a boiler maker's handy man, in the principal sum of $60 per month accident monthly indemnity against the effects of bodily injuries sustained during the term of the policy and caused solely by external, violent, and accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and in the sum of $60 per month sickness monthly indemnity against the effects of sickness. The declaration in a single count containing a copy of the policy averred that the death of the insured, Christ, who was a son of the plaintiff, the beneficiary in the policy, occurred February 17, 1920, and was produced solely through external, violent, and accidental means, to wit, by accidentally drinking polluted water on February 3, 1920, believing such water to be pure and fit for drinking purposes.

The plea was the general issue, and the evidence was all contained in a stipulation of facts showing that the insured was employed in the railroad shops of the Chicago & Alton Railroad Company, as a boiler maker's helper on February 3, 1920; that at that time, and for a year previous, there had been two systems of water pipes in the shops, one used for conveying water for drinking purposes for all employees in the shops, and the other conveying water for other purposes, such as filling engine tanks, but not for drinking purposes. The two systems of pipes were entirely separate and independent except for one connection, at which there was a gate valve, which kept the water in either system from flowing into the other. The water for both systems was supplied by the city of Bloomington from its regular water mains. During January and February, 1920, there was a shortage of water, by reason of which the amount of water supplied by the city to the railroad shops was curtailed, and on this account the railroad company during the month of January began pumping water from a small stream, known as Sugar creek, near the shops, and forcing such water into the system of pipes used to convey water for other than drinking purposes. Sewage from the cities of Bloomington and Normal emptied into Sugar creek a short distance above the point where the pumping was conducted, and on that account the water pumped was polluted by sewage and other putrid and decaying matter. Shortly before February 3, the valve at the connection of the two systems of water pipes became defective, by reason of which the polluted water in the system used to convey water for other than drinking purposes flowed into the system of pipes conveying water for drinking purposes, and polluted the water in those pipes. This condition existed on February 3, and for a week before that date. About a week before February 3, the insured, while going about his usual duties, being uninformed of the polluted condition of the drinking water, several times drank water from the faucet of the system of pipes used to convey water for drinking purposes, believing each time that the water was pure and harmless and fit for drinking purposes, though it was, in fact, polluted. As a result of drinking such polluted water he became ill with typhoid fever, which had its cause in drinking the polluted water, and he continued sick with typhoid fever until February 17, when he died as a result of that disease. The insured complied with all the conditions of the policy. It was further stipulated that typhoid fever is an idiopathic disease, the result of a toxin created by germs taken by food or drink or contact with substances having germs, and the toxin is formed in the intestines. Subject to its materiality, it was further stipulated that the germs may be present in a person and not create a toxin and may be harmless, while in another person the same germs create the toxin and result in fever; that typhoid fever may be prevented by inoculation of antitoxin; that it may be, and frequently is, carried by persons to others, such persons being known as typhoid carriers; that typhoid fever is usually not a fatal sickness, and that the percentage of fatalities is about 8 per cent. It was stipulated that the controversy to be decided in this case is whether or not, under the foregoing stipulated facts, the defendant is liable under that part of the policy providing for death caused solely by external, violent, and accidental means, or under that part of the policy which provides for payment in case of sickness or disease, and if so the amount of the liability. The cause was submitted to the court without a jury, the issues were found for the plaintiff, and judgment was rendered in her favor.

The only question presented by the record is whether the evidence tends to prove the allegation of the declaration that the deceased's death was produced solely through external, violent, and accidental means.

Typhoid fever is a disease, and, as stipulated, it is idiopathic-that is, a primary disease, not preceded and occasioned by any other disease. It is due to a specific germ, which is ordinarily taken into the system with food or drink. A death by typhoid fever cannot be regarded as accidental unless it appears that the disease itself was occasioned by accidental means. The means by which disease is acquired being the entrance of the typhoid bacilli into the system, if the means of such entrance are accidental the resulting typhoid fever and its fatal effect may also be said to be accidental.

We have had occasion in a number of cases to define the term ‘accident’ as used in accident insurance policies. In Hutton v. States Accident Ins. Co., 267 Ill. 267, 108 N. E. 296, L. R. A. 1915E, 127, Ann. Cas. 1916C, 577, we said that an effect which is the natural and probable consequence of an act or course of action cannot be said to be produced by accidental means. After citing several cases the rule announced in Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 South. 852, was approved, that--

‘An accident may be said to be an unforeseen or unexpected event of which the party's own misconduct is not the natural and proximate cause, and hence the result ordinarily and naturally flowing from the conduct of the party insured cannot be said to be accidental, even when he may not have foreseen the consequences. * * * The happening of an event, to be properly termed an accident, * * * must not only be unforeseen, but without the design and aid of the person.’

In United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60, the complaint charged that the insured jumped from a platform four or five feet high to the ground, and in alighting unexpectedly received an accidental jar and sudden wrenching of his body which caused a stricture of the duodenum, from the effects of which he died a few days later. It was urged that there was no evidence to support the verdict because no accident was shown. The court did not concur in that view, but said:

‘The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;’ that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.'

The Barry Case is a leading case, which is usually cited in cases on accident policies involving the question of what constitutes an accident. The language quoted was approved in Higgins v. Midland Casualty Co., 281 Ill. 431, 118 N. E. 11, which quoted from Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517, as follows:

‘The proper and true test, in all instances of voluntary action, is that...