Deese v. American Bankers Life Assur. Co. of Florida, 19894

• Decision Date: 07 October 1974
• Docket Number: No. 19894,19894
• Citation: 208 S.E.2d 736,263 S.C. 160
• Court: South Carolina Supreme Court
• Parties: Helen DEESE, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, Respondent.

Page 736

208 S.E.2d 736

263 S.C. 160

Helen DEESE, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, Respondent.

No. 19894.

Supreme Court of South Carolina.

Oct. 7, 1974.

Anderson, Kenyon & Epps, Anderson, for appellant.

Watkins, Vandiver, Kirven, Long & Gable, Anderson, for respondent.

BRAILSFORD, Justice:

This is an action by the beneficiary of an accidental death policy on the life of her husband, who died of a heart attack on May 13, 1971, while undergoing a bronchostomy for the removal of two teeth from his lungs. Plaintiff called only one witness, a physician who attended the insured from his admission to the Anderson Hospital until his death some hours later. At the conclusion of this witness' testimony, the court granted an involuntary nonsuit on the ground that the insured's death was not a covered loss. Plaintiff has appealed on the ground that the testimony raised a factual issue whether the insured's death resulted from an accidental injury as defined by the policy.

The insuring agreement was to pay the death benefit of $5,000.00 should 'an injury suffered by the insured . . . result in (death) within ninety days after the date of the accident causing such injury.' The policy defined 'injury' to mean 'bodily injury as evidenced by a visible contusion or wound on the exterior of body (except for drowning or internal injuries revealed by autopsy) caused by accident . . ..' In short, the policy insures against death caused by accidental injury only if, with inapplicable exceptions, the fatal injury is evidenced by a visible contusion or wound on the exterior of the body.

When the witness saw the insured, 'he was acutely and critically ill.' His respiration was irregular and labored, he was unresponsive to pain, had high fever, probably secondary to aspiration pneumonia, his heart beat was rapid and irregular, and he was unconscious. While the witness and another doctor were undertaking to put a tube down the patient's throat to provide an airway, he had several severe seizures. Quoting from the doctor's testimony, '(H)e had numerous decayed teeth and bad gums, he in mashing his teeth during the seizures, he bit his tongue, actually split it very badly and was bleeding, the teeth became dislodged during the seizure and he gasped like that and two of them went down his windpipe. One of them went into the usual location in the right lower lung and one went into the left side. ¹ . . . The next morning Dr. Brown took him to the operating room to put a bronchoscope down; this is an instrument, a hollow tube-like that you can look through and suction through and so forth, put it down the windpipe and withdraw these teeth. During this procedure the man died.

'Q. Do you have an opinion as to the cause of his death doctor?

'A. Well, I would assume that during the procedure as sick as he was, that he had a heart attack and died.

'In my opinion he expired because of the bronchostomy which was necessitated to get the teeth out. . . .'

An autopsy was performed on insured, but the report made no mention of teeth or any foreign body in the lungs, or of any injury therefrom. The medical witness suggested as possible explanations of this omission that the insured either coughed up the teeth after the X-ray was made, or that they were removed by the bronchoscope.

It is conceded that the insured died of a heart attack induced by a medical procedure made necessary by his accidental inhalation of two teeth into his lungs. Plaintiff's reliance is upon the principle...