Dalbey v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 11 December 1937
• Docket Number: 7735.
• Parties: DALBEY v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Montana Supreme Court

74 P.2d 432

105 Mont. 587

DALBEY v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 7735.

Supreme Court of Montana

December 11, 1937

Appeal from District Court, Fergus County, Tenth District; William L. Ford, Judge.

Action by Gertrude M. Dalbey against the Equitable Life Assurance Society of 01,74 P.2d the United States. From an adverse judgment, defendant appeals.

Affirmed.

J. A Poore, of Butte, for appellant.

Oscar O. Mueller, of Lewistown, for respondent.

STEWART Justice.

This is an action on an insurance policy issued by the defendant company, respondent here. By the terms of the policy plaintiff, mother of George K. Dalbey, deceased, was named beneficiary to receive $2,000 in case of the death of the insured, with the beneficial amount to be increased to $4,000 on receipt of proof of death from accident, in accordance with the following definition contained in the policy "Death from accident means death resulting solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means." The paragraph then provided for the noninclusion of certain designated risks, but did not provide for the exclusion of a fireman from the protection of the policy. Deceased, a fireman, was therefore covered and protected by the policy in accordance with the terms thereof.

The cause was tried to the court, a jury having been expressly waived. The primary liability on the policy, $2,000, was paid upon proof of death furnished, leaving for controversy only the matter of the additional $2,000, which was payable only in the event of accidental death. The court found that deceased had died as a result of accidental means resulting solely from bodily injuries caused directly, exclusively, and independently of all other causes, by external violence and purely accidental means as stipulated in the policy, and concluded, as a matter of law, that the plaintiff was entitled to a judgment for the additional $2,000. The appeal is from that judgment.

The sole question presented by the assignments of error is whether the evidence is sufficient to support the finding that the cause of insured's death was such as to bring it within the double indemnity provision of the insurance contract. Solution of the question naturally depends upon a consideration of the evidence in the light of the term "death from accident," as defined in the policy.

It is the position of defendant that the death, though accidental was not caused directly, exclusively, and independently of all other causes, by external, violent, and purely accidental means. It also denies that any such proof of death has been furnished. Plaintiff's position is to the direct contrary.

The very nature of such a contract of accident insurance makes it necessary to consider the facts of each particular case to determine whether the death of an insured is one for which the insurance company has agreed to pay increased indemnity. The judicial variability on the question of accidental means causing the lack of uniformity in the interpretation of such policies has arisen largely from the dissimilarity of facts involved. Mehaffey v. Provident Life & Accident Ins. Co., 205 N.C. 701, 172 S.E. 331.

The only evidence adduced relative to the circumstances of the death of the insured here was the testimony of two witnesses, the fire chief in charge of the department fighting the fire, and the doctor who attended deceased immediately after his collapse. Both witnesses were produced by the plaintiff. Defendant introduced no evidence. Their testimony disclosed that deceased was apparently an exceptionally strong and healthy young man; that he was a regularly paid member of the city fire department; that he died in service from acute pulmonary edema, caused by the inhalation of smoke and gas fumes. The testimony of the fire chief further disclosed that the fire was that of a large barn having a wooden interior and covered on the outside with corrugated iron; that there were about twenty tons of oat hay and a few head of livestock in the barn, which was located just outside the city limits of Lewistown and under a hill. The nearest water hydrant to the barn was approximately 300 feet away, and it was impossible to get near the barn from the hydrant with a fire truck. This fact necessitated the laying of two lines of hose by hand from the hydrant down the hill to the barn. Deceased assisted in the unreeling and laying of the hose, which work was usually done with the truck. Continuing, the fire chief testified: "It was a very unusual fire, because of the fact that it was situated right under a hill. The smoke was so intense at times we had to move our position several times in order to stay where we could throw water on the fire. There were several head of livestock burned in the barn, a horse and four head of calves, and that stench and smoke made it unbearable at times, and made it necessary to shift positions from one place to another in order to stay anywhere near the barn."

Further testifying with reference to smoke conditions and types of smoke, the witness said: "Sometimes it will be a light smoke that will hit the atmosphere and lift and drift off, and sometimes you have heavy smokes. I don't know what the technical term would be, but they hang close to the ground. That is the particular type of fire we really have trouble with trying to stay close to, and that was the particular type of fire in this case that Dalbey was fighting. The smoke was very dense and hung to the ground and the hillside. Whether it was the contour of the ground, or whether it was just the condition of that particular kind of smoke, I can't say; but I do know that particular smoke was very intense and very irritating, and as fast as men would come out of the smoke they would be coughing and doing a lot of spitting. Some smoke does not affect us that way."

It appears that deceased's asphyxiation did not manifest itself while he was actually engaged in shooting water into the blaze, but that it came about while shifting the position of the hose from the north to the south side of the barn to protect other buildings from burning. To make this change it was necessary to climb a six-foot fence. Deceased reached the top but, as he did so, he fell back unconscious. He did not recover from this and died some hours later.

The testimony of the attending physician showed that deceased died from acute pulmonary edema, which condition, was brought about by the inhalation of smoke and fumes. He was asked the following question: "You heard the testimony in regard to his [deceased's] collapse when he started to get over the fence. Would that indicate the condition he was in at that time, Doctor? Answer: I don't think that has anything particular to do with it. Patients who collapse from inhalation of smoke usually collapse very quickly. They may have a few premonitory symptoms to which they may not attach very much importance. A person may inhale a small amount of monoxide gas, and the symptoms appear to be rather mild for a moment or two, and suddenly they don't recall what happened after that."

Similar indemnity provisions have been the subject of much litigation in different jurisdictions, with the result that the decisions rendered have not been entirely uniform on the subject. A case illustrating the one extreme is that of Equitable Life Assurance Society of United States v. Hemenover, 100 Colo. 231, 67 P.2d 80, 110 A.L.R. 1270, a case subscribing to the rule that no distinction exists between accidental results and accidental means. On the other hand, illustrating an opposite result, is the case of Mehaffey v. Provident Life & Accident Ins. Co., supra, wherein that court announced that, in the absence of a showing that poison had been taken by mistake or inadvertence, the death was not the result of accidental means within the terms of the policy.

The litigated cases on the subject have been comparatively few in this jurisdiction. The only case bearing immediately on the question is that of ...