Continental Casualty Co. v. Willis

• Decision Date: 16 October 1928
• Docket Number: No. 2742.,2742.
• Citation: 28 F.2d 707,61 ALR 1069
• Parties: CONTINENTAL CASUALTY CO. v. WILLIS.
• Court: U.S. Court of Appeals — Fourth Circuit

61 ALR 1069, 28 F.2d 707 (1928)

CONTINENTAL CASUALTY CO. v. WILLIS.

No. 2742.

Circuit Court of Appeals, Fourth Circuit.

October 16, 1928.

William C. Coulbourn and Robert G. Butcher, both of Richmond, Va., for appellant.

Branch Johnson, of Richmond, Va., for appellee.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an appeal from a judgment of the District Court of the United States for the Eastern District of Virginia, at Richmond, in an action at law wherein Annie Scott Willis, the appellee, was plaintiff, and the Continental Casualty Company, appellant, was defendant below. The parties will be referred to here, respectively, as plaintiff and defendant.

Plaintiff was the beneficiary in an accident insurance policy, issued to Bessie Milton Willis, her sister. Insured was a trained nurse. The pertinent clauses of the policy are:

"The insurance given by this policy is against loss of life, limb, limbs, sight or time resulting from personal bodily injury (suicide or self-destruction while either sane or insane not included) which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event, all in the manner and to the extent hereinafter provided. * * *

"Blood poisoning or septicÊmia resulting directly from bodily injury shall be deemed to be included in the term `bodily injury.'"

Insured in the practice of her profession contracted septicÊmia, and went to a hospital in Richmond, where she died after an illness of about three weeks. On first being examined by physicians an abrasion or break was found in the skin of the ball of the index finger of deceased's right hand, and it was the uncontradicted evidence that her death was caused by septicÊmia. It is admitted that the germs of the disease entered through the abrasion on her finger.

It is admitted that the policy was in force at the time of the death of insured, and that the requirements of the policy as to notice and proof of death had been complied with.

There was evidence to the effect that insured had repeatedly used a disinfectant, the use of which was usual and proper, and which ordinarily would not cause such an abrasion or puncture of the skin, as insured had on her finger, but which might have produced such a result when improperly used or when used by one whose skin was unusually tender or especially susceptible to cracking from its use. The evidence on this question tended to prove that the break in insured's skin on her finger was caused by a puncture rather than by the use of the disinfectant.

In his charge to the jury, the trial judge said: "If the jury are satisfied by a clear preponderance of the evidence that there was an injury, visible external injury, as a result of which a germ was taken into the system which eventually resulted in death, and that that injury occurred either as a result of contact with some other object, unintentional contact, or that it resulted from the use of some medicine or antiseptic solution, which in the ordinary course of events in its careful use would not have occurred, then it is my opinion the jury would, in such circumstances, be justified in finding a verdict for the plaintiff." To this charge, the attorneys for the defendant objected, and the alleged error in the charge is the main point relied upon here.

The court also refused to instruct the jury, on motion of defendant's attorneys, that: "If insured washed her hands in Lysol, intending to wash her hands in Lysol, and doing everything and nothing more than she intended to do, there was no liability upon the defendant company, even though the result of such washing was unexpected."

The insured was a trained nurse by profession, and it can readily be understood how the provision as to septicÊmia, commonly known as blood poisoning, would especially appeal to one following a profession, peculiarly liable to the attacks of this disease. The contract of the policy was to insure against this disease if "resulting directly from bodily injury * * * effected * * * by the happening of an external, violent, or purely accidental event."

The elaborate argument of appellant's counsel is based on what we conceive to be a false premise, that is, that the language in the policy, "personal bodily injury which is effected * * * by the happening of an external, violent and purely accidental event," has exactly the same significance as the standard expression, "bodily injury effected by...