Christensen v. Prudential Ins. Co.

• Decision Date: 24 July 1963
• Parties: Vera S. CHRISTENSEN, Appellant, v. The PRUDENTIAL INSURANCE COMPANY of America, Respondent.
• Court: Oregon Supreme Court

Page 142

384 P.2d 142

235 Or. 93

Vera S. CHRISTENSEN, Appellant, v. The PRUDENTIAL INSURANCE COMPANY of America, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 4, 1963.

Decided July 24, 1963.

A. J. Morris, Eugene, argued the cause for appellant. On the brief were Bailey, Hoffman, Spencer & Morris, and Lewis Hoffman, Eugene.

Robert F. Maquire, Portland, argued the cause for respondent. On the brief were Maquire, Shields, Morrison, Bailey & Kester, and Thomas S. Moore, Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE and LUSK, JJ.

PERRY, Justice.

The plaintiff, as beneficiary under a policy of life insurance, brought this action to recover under a clause providing for double indemnity in case of accidental death. At the close of the case the defendant moved for a directed verdict, which motion was granted by the court, and the plaintiff appeals. The policy provided:

'Upon receipt at the Home Office of due proof that the death of the Insured occurred as a result, directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means * * * (but) no such benefit shall be payable if such death results * * * (g) directly or indirectly from bodily or mental infirmity or disease in any form * * *.'

Both parties agree that the insured's death must have resulted from means which were not only external, but violent and accidental.

The defendant admits the death of the insured, Andrew S. Christensen, Jr., plaintiff's status as beneficiary, and the payment of the face value of the policy, but denies that the insured's death occurred solely through external, violent and accidental means.

The facts are not in dispute, and are as follows:

'The insured was 44 years of age at the time of death on March 14, 1961. He resided in Drain, but carried on his vocation in Eugene. He was described by his physician as having a drinking problem, but there is no evidence of intoxication at the time of death. A gastric resction for an ulcer had been performed in 1954, and there had been a full recovery. To his physician who had examined him a few days prior to his death, he appeared to be in normal physical health, except for his complaint that he had 'pain in the superpubic region,' which is just over the bladder, the lower abdomen, and he complained of frequent urination. The doctor reached a conclusion that he had 'cystitis, i. e., an inflammation of the bladder.' He often complained to Mrs. Christensen of pains in his abdomen, but did not just prior to his death.

The evening prior to Mr. Christensen's death he watched motion pictures of the Patterson-Johansen fight at the Elks Club in Eugene, returning home about 10 p. m. He appeared normal that evening. The following morning, although he had planned to go to Eugene, he decided to sleep in, and his wife proceeded to Eugene without him. Between noon and 3 p. m. he ate lunch at a restaurant in Drain. Mrs. Christensen arrived home from Eugene around 3:30. The deceased was home, and she prepared coffee for them. About 4 p. m. she left for work.

At about 6:30 p. m. the son Dennis arrived home. He found his father sitting in a rocking chair, dressed in his pajamas. The son prepared tomato soup and tuna fish sandwiches. The deceased partook of the soup and ate one of the sandwiches. The son testified the food was palatable and he had no trouble in digesting it. There is no evidence that the food was harmful.

Mrs. Christensen returned home about 8 p. m. She noticed her husband was in bed and asleep, snoring. At about 10:30 Mrs. Christensen went into the bedroom and noticed he was on 'his hands and knees, * * * his head was turned to one side and he had vomited.' She testified he got on his hands and knees 'that way quite often if he was restless or uncomfortable.'

Mr. Christensen was apparently dead when found by his wife. Dr. McMilan, who conducted the autopsy, made the following diagnosis: (1) Suffocation with advanced congestion and edema of the lungs; (2) obstruction of the trachea and bronchi by aspirated gastric contents; (3) coronary arteriosclerosis with areas of insufficiency; (4) an old partial gastric resection; (5) right ventricular dilatation; and other findings entirely immaterial to the issues. He found no acute disease of the stomach and was of the opinion that the cause of death was suffocation caused by the gastric content plugging the airways to the lungs. The gastric content in the airways was identical with that found in the stomach. It was unidentificable as food, 'brownish green' in color and granular in content. The fact that the content was granular was not abnormal. It came about through the regular digestive process.

All of the medical testimony is that the gastric content arrived in the air passages to the lungs through failure of the epiglottis to function properly and close and keep closed the air passage from the esophagus to the lungs while the deceased was vomiting; and that the epiglottis, an elastic cartilage, is not controlled volitionally, but by the autonomic nervous system. All of the medical testimony offered upon the subject agrees that the vomiting was not caused by the food itself, and the regurgitation was due to some failure of the stomach to perform its proper function; that usually this failure of the stomach to perform is due to some irritation or inflammatory process of, or in, the stomach lining.

The question presented is whether the aspiration of the contents of the stomach by causes unknown and the failure of the glottis to close properly so that the contents of the stomach could not enter the lung passages, causing suffocation and death, comes within the meaning of the language of the policy. We are of the opinion that these facts do not bring the deceased's death within the policy terms.

The policy, with respect to a compensable injury, provides that the injury shall be the result of external, violent and accidental causes. '[E]ach of these elements must be present to create liability * * *.' Fries v. John Hancock Mutual Life Ins. Co., 227 Or. 139, 360 P.2d 774.

The plaintiff cites these cases wherein it was held that the taking of food or other substances by mouth fall within the definition of an external cause: Jenkins v. Hawkeye Commercial Men's Association, 147 Iowa 113, 124 N.W. 199, 30 L.R.A.,N.S., 1181 (accidentally swallowing a fish bone); Maryland Casualty Co. v. Hudgins, Tex.Civ.App., 72 S.W. 1047 (1903) (oysters eaten which inflamed the intestinal walls); (reversed on other grounds, 97 Tex. 124, 76 S.W. 745, 64 L.R.A. 349); Gohlke v. Hawkeye Commercial Men's Association, 193 Iowa 144, 197 N.W. 1004, 35 A.L.R. 1177 (taking Sal Hepatica effervescent salts, which threw off gas, causing the glottis to close so that death resulted from asphyxiation); American Accident Co. of Louisville v. Reigart, 94 Ky. 547, 23 S.W. 191, 21 L.R.A. 651 (swallowing a piece of beefsteak which accidentally lodged in the 'windpipe', causing death).

The above cases, however, will not support the plaintiff's position here taken, for each case discloses that the substance taken into the body was not, at the time taken, fit or suitable in its then condition for human consumption, thus being the direct cause or means of producing the injury. As...