Grabau v. Hartford Acc. & Indem. Co.
| Decision Date | 17 March 1967 |
| Docket Number | No. 8382,8382 |
| Citation | 149 N.W.2d 361 |
| Court | North Dakota Supreme Court |
| Parties | Margaret GRABAU, Plaintiff and Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation, Defendant and Respondent. Civ. |
Syllabus by the Court
1. The plaintiff has the burden of proof in an action for death benefits upon an accident insurance policy where policy insured against accidental bodily injuries sustained directly and independently of all other causes to show that the acts which preceded the fatal injury were acts that were unforeseen, unexpected, unusual, unintentional, or involuntary.
2. On a trial de novo in the supreme court, the findings of the trial court are entitled to appreciable weight, especially when based on testimony of witnesses who appeared in person before the court.
3. The credibility of witnesses, that is, medical experts and laymen, and the weight to be given to their testimony are matters for determination by the trier of the facts.
4. Where the accident insurance policy issued on the insured's life by the defendant insured against loss of life and provides that loss of life result directly and independently of all other causes, hereinafter called accidental bodily injuries, and which policy excludes loss contributed to by sickness or disease; and the insured died as the result of a ruptured congenital aneurysm that occurred while insured was hunting, such death did not result from accidental means where deceased walked 100 yards, was an experienced hunter of big game, and fired a 30--06 rifle only three times, using 150-grain bullets.
Mackenzie & Jungroth, Jamestown, for plaintiff and appellant.
Hjellum, Weiss, Nerison & Jukkala, Jamestown, for defendant and respondent.
This is an action upon an accident policy issued to Kenneth E. Grabau during his lifetime, insuring against accidental bodily injury and death. The defendant company, on October 24, 1964, issued a policy to Grabau which provided as follows:
'Table of Benefits
'For loss of
'Life.......The Principal Sum.....'
There were also certain exclusions, among which are the following:
'EXCLUSIONS
'This policy does not apply to death, disability or any other loss caused or contributed to by:
'(a) sickness or disease or medical or surgical treatment therefor except pus-forming infection which shall occur through an accidental cut or wound; * * *.'
The portion of the policy with which we are concerned is the one with reference to insurance against loss of life. The policy was in full force and effect during all of the times herein mentioned and death occurred and proper proof of death was filed within the time limits set forth in the policy.
The insured was 59 years of age and in apparent good heath, and he resided in the city of Jamestown, North Dakota. Mr. Grabau, accompanied by a companion, went on a hunting trip on October 25, 1964, to Montana, where they commenced hunting on the morning of October 26, 1964. The insured was shooting a model 30--06 rifle. He fired three shots at an antelope in the early afternoon of the 26th of October, 1964. Immediately after firing the third shot the insured complained that he had suddenly gone blind. Thereafter he recovered his vision, but he continued to suffer from a very severe headache. The headache continued; thus the hunters returned to Jamestown, North Dakota, on October 27, 1964. Grabau then sought treatments from the Cor-Win Health Clinic, which treatments did not relieve his headache. He consulted a Doctor Hogan of Jamestown prior to November 5, 1964, and was advised to return home and rest. Grabau, on November 5 and 6, suffered fainting spells in his home and a consequent partial paralysis of the left side of his face and of his left arm. Doctor John Van Der Linde, of Jamestown, was summoned. The insured was immediately hospitalized, whereupon further diagnosis and tests indicated that he was suffering from a hemorrhage. Doctor Van Der Linde then referred Mr. Grabau to Doctor Lee A. Christoferson of Fargo, North Dakota. Further tests revealed the presence of an aneurysm and an operation was performed. Mr. Grabau died on November 18, 1964, at a Fargo hospital. An autopsy was performed and disclosed that the cause of death was a rupture of the blood vessel at the point of the congenital aneurysm.
The defendant declined to pay under the terms of the policy and this action was brought to recover the sum of $5,000, pursuant to the terms of coverage of this policy. The defendant's answer denies death from accidental means and further sets forth that death resulted from a natural preexisting condition.
The case was tried to the court and a judgment of dismissal of plaintiff's action was entered.
The plaintiff and appellant, who is the surviving widow and sole beneficiary under the policy, has appealed and demanded a trial de novo.
The issues to be determined are as follows:
1. Whether or not Kenneth E. Grabau died by accidental means, directly and independently of all other causes; and
2. Did sickness or disease cause or contribute to Grabau's death?
The above issues involve a construction of the provisions of the policy in this particular suit. The plaintiff contends that the insured's death was caused by accidental means, even though the insured was suffering from a pre-existing disease and that, if a subsequent accident is the proximate cause of death, a recovery may be had under the policy, even though a diseased or infirm condition actually contributes to the cause of death, provided that the accident sets in progress the chain of events leading directly to death if the same is the prime or moving cause.
The general rule is that the mere fact that the insured is afflicted with some disease or infirmity at the time of an injury will not preclude recovery upon an accident insurance policy if an accident is the direct or proximate cause of death or disability, even though the policy excepts death or injury caused by disease or infirmity. 29A Am.Jur., 'Insurance,' Sec. 1212, p. 351; 84 A.L.R.2d, Sec. 7, p. 196.
This court has defined the term 'accidental means' in Jacobson v. Mutual Ben. Health & Accident Ass'n, 69 N.D. 632, 289 N.W. 591, as follows:
'1. The term
Likewise, in Jacobson v. Mutual Ben. Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 555, this court said:
* * *'
The plaintiff cites the Jacobson decisions as controlling in this case. The language of the policy in this case is similar to that of the Jacobson cases. However, the facts are vastly different because in the Jacobson cases the insured, in good health while regularly employed at his occupation, was subjected to great bodily strain which resulted in injury to his heart, subsequent illness, and ultimate death. The medical testimony corroborated the same. In this case the insured voluntarily participated in the hunting trip for recreation. He was an experienced hunter of upland and big game, and the attendant excitement of the hunt was not anything of an unusual nature. The record does not indicate that there was any particular strain as a result of the hunt. The undisputed testimony of the insured's hunting companion shows that the only hunting which was done by himself and Mr. Grabau was on October 26, 1964, from approximately seven o'clock in the morning until early afternoon, and that nearly all of this hunting consisted of traveling in a car and observing the area in order to locate the antelope. The testimony further shows that Grabau walked about 100 yards and, in addition, that he carried a 30--06 rifle and fired the usual 150-grain bullet.
The plaintiff urges that the testimony of Doctor Van Der Linde is controlling in that such evidence conclusively shows that the death of Kenneth E. Grabau resulted from the excitement of the hunt, the shooting at the running game, and the concussion of the gun, and that the same were the precipitating factors which caused a rupture of the aneurysm. Doctor Van Der Linde further testified, however, that the exertion and excitement were not the direct and independent causes of the death, but that in effect they contributed with the aneurysm to the rupture of the aneurysm and consequent death.
The plaintiff further contends that the case of Druhl v. Equitable Life Assur....
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