Griswold v. Metro. Life Ins. Co.

• Decision Date: 15 July 1935
• Citation: 180 A. 649
• Parties: GRISWOLD v. METROPOLITAN LIFE INS. CO.
• Court: Vermont Supreme Court

180 A. 649

GRISWOLD

v. METROPOLITAN LIFE INS. CO.

Supreme Court of Vermont. Windsor.

July 15, 1935.

POWERS, C. J., dissenting.

Exceptions from Windsor County Court.

Action by Miriam S. Griswold against the Metropolitan Life Insurance Company. Verdict and judgment for plaintiff, and defendant brings exceptions.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

A. J. Parker, of Springfield, for plaintiff.

M. C. Webber and C. A. Webber, both of Rutland, for defendant.

MOULTON, Justice.

The plaintiff is the beneficiary under a policy of accident insurance, issued by the defendant, insuring her late husband, James H. Griswold, against "the results of bodily injuries sustained while this policy is in force and caused directly and independently of all other causes by violent and accidental means," and providing also that the policy should not cover death caused wholly or partly by infection "excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means." Verdict and judgment below were for the plaintiff, and the cause is before us on the defendant's exceptions.

At the close of the evidence, the defendant moved for a directed verdict, which was denied subject to exception. The several grounds for the motion may be epitomized by saying that it was alleged that there was no evidence tending to show that the death of the insured was caused from septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means.

That the insured died of septic infection is not questioned. The dispute concerns the nature and cause of the injury and the cause of the subsequent infection and death. As to these matters, the evidence, taken most favorably for the plaintiff, tended to show the following: On Friday, April 28, 1933, the insured was chopping kindling wood at a chopping block some 30 to 40 feet from the house. A witness, who observed him through a window, testified that, as he was chopping, a stick of wood flew up, and it "looked as though it hit him in the face." The insured immediately came into the house and asked for a clean cloth, which he took and held against the junction of his lip and nose, near the opening of his nostril, and, when he took the cloth away, there were spots of blood upon it. The plaintiff did not look at the insured's lip, because he would not let her do so, saying that it was nothing. But from this testimony the jury would be justified in finding that there was an abrasion of the skin which permitted the blood to escape, and hence a visible wound, caused by the impact of the stick.

On the following Tuesday the insured complained of pain at the base of his nose. Swelling appeared at the spot where he had held the cloth. A physician who was consulted on the Wednesday found an abrasion, at the junction of the membranous tissue of the nose and lip, containing a drop or two of pus. The swelling rapidly increased and spread until his face became discolored and swollen beyond recognition. Pains developed in his side and back, along with very high temperature. He was taken to the hospital and nourishment administered through a tube, because he could not open his mouth. He died of acute septicaemia on Wednesday, May 10. The infection was the usual type that is introduced into the body only where there is a break in the skin, and, according to an expert, it was extremely probable that it had been introduced by and through an abrasion at the nose suffered on April 28. Upon this evidence it was permissible for the jury to find that the septic infection was "of and through a visible wound," as provided in the policy. It is true that there was evidence, on the part of the defendant, tending to show that the insured had had a boil in his nose some eight weeks before the accident, and that the infection might have been caused by this or some other means, but the weight of the evidence is not for consideration upon this question; it is enough if there is evidence fairly and reasonably tending to support the plaintiff's claim, and the effect of modifying evidence is to be excluded. Ste. Marie v. Wells, 93 Vt. 398, 399, 108 A. 270.

We come now to the question whether it can be said that the injury was caused by violent and accidental means. That it was violent seems beyond question, and is not disputed, but the defendant makes the point that, since the act of the insured in chopping the wood was voluntary and intentional, and nothing appeared to show that it was not performed exactly as intended, with no slip or mishap, the means were not accidental, although the result might be so described. This is the first time that this question has been raised before us, and a somewhat extended examination of the decisions in other jurisdictions will be profitable.

The leading case, to which practically all the authorities refer, is U. S. Mutual Accident Association v. Barry, 131 U. S. 100, 9 S. Ct. 755, 762, 33 L. Ed. 60, 67, wherein the rule is thus stated: "If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means." From this statement of the law two diverse and irreconcilable views have developed. It is said in Caldwell v. Travelers' Ins. Co, 305 Mo. 619, 267 S. W. 907, 908, 39 A. L. R. 56, 61: "There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death."

The former or strict view is concisely expressed in Kimball v. Massachusetts Accident Company, 44 R. I. 264, 117 A. 228, 230, 24 A. L. R. 726, thus: "In determining that an injury occurred by 'accidental means,' it should appear that the cause or means governed the result and not the result the cause; and that, however unexpected the result might be, no recovery could be allowed under such a provision unless there was something unexpected in the cause or means which produced the result. * * * When a man is injured while doing merely what he intends to do, he is not injured by an accident, unless the course of his action has been interrupted or deflected by some unforeseen or unintended happening." Accidental means and accidental cause are synonymous expressions. Caldwell v. Traveler's Ins. Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56, 80; Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, 949. The distinction is made between an accidental injury or death and an injury or death caused by accidental means. In Olinsky v. Railway Mail Ass'n, 182 Cal. 669, 189 P. 835, 837, 14 A. L. R. 784, 786, it is put this way: "Where the death is the result of some act, but was not designed and not anticipated by the deceased, though it be in consequence of some act voluntarily done by him, it is accidental death. Where death is caused by some act of the deceased not designed by him, or not intentionally done by him, it is death by accidental means. In other words, accidental death is an unintended and undesigned result, arising from acts done; death by accidental means is where the result arises from acts unintentionally done."

Accordingly, it has been held that death or injury did not result from accidental means, in the following cases: Where a rupture was caused in piling heavy mail sacks, Fane v. National Ass'n Ry. Postal Clerks, 197 App. Div. 145, 188 N. Y. S. 222, 223; where a blood vessel was ruptured by the habitual act of shaking a furnace, Husbands v. Indiana Traveler's Acc. Ass'n, 194 Ind. 586, 133 N. E. 130, 35 A. L. R. 1184; where a strain, resulting in death, was caused by pushing a boat into the water, and casting a seine net, Fulton v. Metropolitan Casualty Co., 19 Ga. App. 127, 91 S. E. 228, 229; where the insured pushed a table which tilted, and, to prevent its fall, he seized it, injuring himself, Curry v. Federal Life Ins. Co., 221 Mo. App. 626, 287 S. W. 1053; where deceased, in using a nasal douche, drew violently into his nostril, and thus caused virulent germs to enter his brain through the middle ear, Smith v. Travelers' Ins. Co., 219 Mass. 147, 149, 106 N. E. 607, L. R. A. 1915B, 812; where the insured, while in a feeble condition, carried his own baggage and was injured, Cobb v. Preferred Mut. Acc. Ass'n, 96 Ga. 818, 22 S. E. 976; when the injury, was the result of voluntarily alighting from a moving train, Whitehead v. Railway Mail Ass'n (C. C. A.) 269 F. 25, certiorari denied 255 U. S. 570, 41 S. Ct. 375, 65 L. Ed. 791; Southard v. Railway Pass. Assur. Co., 34 Conn. 574, 576, 578, Fed Cas. No. 13, 182; where the injured, while enfeebled and suffering from high blood pressure, suddenly raised his head, thus causing a blood rupture of his retina, destroying the sight of one eye, Stone v. Fidelity & Casualty Co., 133 Tenn. 672, 182 S. W. 252, L. R. A. 1916D, 536, 538, Ann. Cas. 1917A, 86; where acute dilation of the heart was caused by the voluntary effort of cranking an automobile, Carswell v. Railway Mail Ass'n (C. C. A.) S. F.(2d)...