Continental Cas. Co. v. Clark
| Decision Date | 30 April 1918 |
| Docket Number | 8539. |
| Citation | 173 P. 453,70 Okla. 187,1918 OK 256 |
| Parties | CONTINENTAL CASUALTY CO. v. CLARK. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 25, 1918.
Syllabus by the Court.
In an accident insurance policy which provides, "If sunstroke freezing, or hydrophobia, due in either case to external violent or accidental means, shall result, independently of all other causes, in the death of the insured within ninety days from the date of the exposure or infection, the company will pay said principal sum as indemnity for loss of life," held, that "accidental means" is used to denote "accidental cause," and in case of sunstroke, if the same was suffered while the insured was engaged in his usual avocation or going about his affairs in an ordinary manner as any other person might have been under like or similar circumstances, and did not intentionally and voluntarily subject himself to an intense heat calculated to produce sunstroke, with the knowledge that it would probably occur, then the sunstroke was suffered from "accidental means" or "accidental cause," within the meaning of the policy.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Accidental Means; Second Series, Accidental Cause.]
In a policy which provides, "Each consecutive full year which this policy shall be carried without default in payment of premium therefor shall add 10 per cent. to the indemnities payable under part II, but the total of such additions shall not exceed 50 per cent.," held that, the additional indemnity provided for in this paragraph being for the benefit of the insured, it is incumbent upon beneficiary to show that the payments of premiums were made without default, in order to increase the policy according to this provision, and the fact that the policy was in effect at the date of the death of the deceased did not justify the presumption that the premiums were paid without default.
Commissioners' Opinion, Division No. 2. Error from District Court, Seminole County; Tom D. McKeown, Judge.
Suit by Mabel A. Clark against the Continental Casualty Company. Defendant's demurrer to the evidence overruled, and verdict directed for plaintiff, motion for a new trial denied, and on plaintiff's motion for a new trial judgment increased, and defendant brings error, and plaintiff brings cross-error. Affirmed.
Keaton Wells & Johnston, of Oklahoma City, and M. P. Cornelius, of Chicago, Ill., for plaintiff in error.
Cobb & Cobb and E. L. Harris, all of Wewoka, for defendant in error.
This was a suit instituted in the district court of Seminole county on July 14, 1914, by defendant in error, plaintiff below, against plaintiff in error, defendant below, to recover on an accident insurance contract issued by plaintiff in error to Hartley M. Clark, in his lifetime, naming the defendant in error as beneficiary. The parties hereinafter will be referred to as they appeared in the court below.
On the 16th day of February, 1916, cause was tried to a jury, after the evidence of plaintiff had been introduced, defendant demurred to the evidence, the same was overruled, defendant refused to offer any testimony, and thereupon the court instructed the jury to return a verdict in favor of plaintiff for $2,500. Both parties filed motion for new trial, and upon consideration of the motion for new trial by plaintiff the court increased the judgment from $2,500 to $3,000. To review this action of the court the defendant has perfected its appeal. The plaintiff has perfected a cross-appeal complaining of the amount of the judgment.
The evidence adduced by plaintiff tended to show that Hartley M. Clark, the deceased, was a healthy person, and had been a resident of Seminole county about seven years; that on July 19, 1914, in company with George Killingsworth, the deceased drove to the country, a distance of about six miles, it being very dry, warm, and dusty, and on the completion of the journey, or about the time of returning home, suffered a sunstroke, from which he died a few days later; and that proof of loss had been made as provided in the policy.
The only question to be determined by the appeal presented by the defendant is the construction of paragraph 4 of said insurance contract, and whether or not under the evidence adduced by plaintiff, the defendant is liable thereunder. Paragraph 4 of said contract is as follows:
The Universal Cyclopedia furnished this definition:
"Fever due to excessive heat, but most commonly to exposure to the direct heat of the sun; indirect solar heat or artificial heat may have the same effect."
Billing's National Dictionary:
"A popular term for insolation or heat stroke."
Gould's New Medical Dictionary gives the following definition:
"A condition resulting from exposure to the heat of the sun or to heat from other sources."
A number of other medical dictionaries give practically the same definition.
An "accident" is defined as follows:
It will be noted that sunstroke, freezing, and hydrophobia are treated in the same paragraph of the contract, and which provides that when either is suffered due to external, violent, and accidental means, which result, independent of all other causes, in the death of the insured within 90 days from the date of the exposure or infection, the company will pay said principal sum as indemnity for the death or loss of life; and, when considered together and in the light of their connection with each other, it seems to us that the same conditions surrounding either of the injuries above referred to in this clause of the contract fixing liability on the company should be the same. It is easy to understand that hydrophobia, which is due generally to a bite of an animal, would be suffered by accidental means, unless the insured should intentionally subject himself to the bite of an animal suffering from hydrophobia. It is equally clear that freezing would be considered to be due to accidental means should the insured suffer death by freezing in any manner save and except when he subjected himself to a condition of the weather or climate which would necessarily convey to a man of ordinary intelligence death by such action.
"Accidental means," as used in the policy, as we understand it, denoted "accidental cause." "Means" and "cause" could be and were intended to be interchangeable used in this policy, and so that, if the sunstroke was suffered while the insured was engaged in his usual avocation or going about his affairs in an ordinary manner as any other person might have been under like or similar circumstances, and did not intentionally and voluntarily subject himself to an intense heat, calculated to produce sunstroke with the knowledge that it would probably occur, then we could say that the sunstroke was suffered from accidental means or accidental cause; that is to say, that "sunstroke," as used in the policy and as understood by the insured, was treated in the nature more of an accident than as a disease. While the decisions generally, with a few exceptions, hold that sunstroke is a disease, it is not regarded as a disease in the popular mind. In the common understanding of the insuring public it is accounted a kind of violent personal injury, from the very idea of sudden and external force carried by the word. If classed by medical authorities as technically a disease, to none but an expert medical mind would the provisions of this policy have carried this significance. Particularly is this true, when read in connection with the other two provisions, freezing and hydrophobia, provided for in the same clause of the contract.
We have read some few cases treating upon this subject, none of which to our mind clearly clarify the situation presented by this appeal.
In the case of Continental Casualty Company v. Johnson, decided June 9, 1906, by the Supreme Court of Kansas and reported in 74 Kan. 129, 85 P. 545, 6 L. R. A. (N. S.) 609, 118 Am. St. Rep 308, 10 Ann. Cas. 851, the plaintiff in error in that case...
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