Hammer v. Mutual Ben. Health & Acc. Ass'n, 33034

• Decision Date: 24 December 1952
• Docket Number: No. 33034,33034
• Citation: 36 A.L.R.2d 1084,109 N.E.2d 649,158 Ohio St. 394
• Court: Ohio Supreme Court
• Parties: , 36 A.L.R.2d 1084, 49 O.O. 273 HAMMER v. MUTUAL BEN. HEALTH& ACCIDENT ASS'N.

Page 394

158 Ohio St. 394

109 N.E.2d 649, 36 A.L.R.2d 1084, 49 O.O. 273

HAMMER v. MUTUAL BEN. HEALTH& ACCIDENT ASS'N.

No. 33034.

Supreme Court of Ohio.

Dec. 24, 1952.

Syllabus by the Court.

1. Heat exhaustion or sunstroke, if suffered unexpectedly, is within the protection of a life and accident policy insuring against bodily injuries sustained through accidental means.

2. To warrant a recovery it is not necessary that the exposure to the sun should be the result of an accident.

In the Court of Common Pleas this action was instituted by the plaintiff as the beneficiary under the provisions of a so-called health and accident policy issued to her husband by the defendant on March 2, 1949.

The trial resulted in a verdict and judgment in favor of the plaintiff.

On an appeal to the Court of Appeals on questions of law, the judgment of the trial court was affirmed.

The cause is in this court for a review by reason of the allowance of the defendant's motion to certify the record.

Forest E. Weinrich, Logen, for appellee. Waymon B. McLeskey, Columbus, for appellant.

WEYGANDT, Chief Justice.

The basis of this controversy is the following controlling language of the policy:

'Mutual Benefit Health and Accident Association, Omaha (herein called association) hereby insures Carl Watson Hammer (herein called the insured) of city of Logan, state of Ohio, against loss of life, limb, sight or time, sustained or commencing while this policy is in force, resulting directly and independently of all other causes, from bodily injuries sustained while this policy is in force, through purely accidental means * * *.

* * *

* * *

'If the insured shall sustain bodily injuries, as described in the insuring clause, which injuries shall, independently and exclusively of disease and all other causes, continuously and wholly disable the insured from the date of the accident and result in any of following specific losses within thirteen weeks, the association will pay for loss of:

'Life ..... principal sum.'

The defendant has interposed 37 assignments of error. However, the gravamen of its contention is, first, that the death of the insured on July 8, 1949, did not result from 'bodily injuries,' second, that any such injuries were not sustained 'through purely accidental means,' and, third, that, if the insured did suffer bodily injury through purely accidental means, the death did not result from such injury 'directly and independently of all other causes.'

Most of the pertinent facts are not in dispute. On the day of his death the insured was approximately thirty-five years of age. He and another man employed by a roofing company were engaged in shingling the roof of a house in Greenfield, Ohio. The weather is described as 'very hot,' 'mighty hot' and 'so hot we couldn't hardly get our breath.' In the middle of the afternoon both men left the roof and rested in the shade about a half hour. Then each picked up a bundle of shingles weighing approximately 70 pounds. The men started up the ladder with the decedent in the lead. The latter threw his bundle on the roof and asked his associate whether he needed help. On receiving an answer in the negative, the decedent stepped from the ladder to the roof. It was necessary to place the shingles higher on the roof. The decedent attempted to accomplish this, but as he did so he suddenly collapsed and fell on his bundle of shingles. He died within a few minutes.

In his report the county coroner certified that the 'disease or condition directly leading to death' was 'acute coronary occlusion,' and that the antecedent cause was 'heat exhaustion.' Later the coroner signed an affidavit stating that he found no injury and that the cause of death was heat exhaustion and acute coronary occlusion.

In response to special interrogatories the jury found (1) that the death of the decedent resulted from bodily injuries, (2) that such bodily injuries resulted in death independently and exclusively of disease and all other causes, (3) that such bodily injuries resulted through purely accidental means, (4) that decedent's death was not caused solely by coronary occlusion, (5) that coronary occlusion contributed to the death of the decedent, and (6) that heat exhaustion contributed to the death of the decedent.

It is the contention of the defendant that there was no evidence warranting a submission of the case to the jury on the questions of physical injury or accidental means or sole causation.

However, a careful study of the record discloses evidence which required the trial court to overrule the defendant's motion for a directed verdict.

The following is illustrative of the evidence on the question of physical injury:

'Q. Any kind of injury to any part of the body come as a result of heat exhaustion? A. The organs have an injury from heat exhaustion. The plugging up of the vessels--that will cause thrombi in the organs. I don't quite get what you mean.

'Q. That's exactly what I mean. So that as a matter of fact, the physical injury or the plugging up of the vessel is the direct result of the hear exhaustion? A. That's right.'

The question whether heat exhaustion or sunstroke may constitute accidental means, is, counsel agree, one of first impression in this state. The general rule is summarized as follows in 29 Am.Jur., 759, § 1004:

'It is held by the weight of authority that a sunstroke, suffered by one unexpectedly, is within the protection of an accident insurance policy insuring against bodily injuries sustained through external, violent, and accidental means. In accordance with this view, it has been held that death from a sunstroke suffered while the insured is engaged in his ordinary duties or occupation is a risk covered by the policy, and that it is unnecessary, in order to warrant a recovery, that the exposure to the sun should be the result of an accident.'

To the same effect is the following statement in 22 Ohio Jur., 666, § 570:

'A sunstroke, according to the apparently better reasoned authorities, if suffered unexpectedly, is within an accident policy insuring against bodily injuries sustained through accidental means or by accident.'

To the same effect are annotations in 17 A.L.R., 1197; 61 A.L.R., 1197; and 90 A.L.R., 1387.

The Court of Appeals made the following pertinent comment in its opinion:

'It is true as contended by counsel for the defendant that the insured voluntarily exposed himself to the sun on the day of his death. He was at the time pursuing his work in the ordinary way unmindful of any danger from the heat of the sun as attested by the record. Even though he was in the sun voluntarily, this self exposure can not be regarded as 'the means' of his injury. It can not be said that the heat exhaustion or sunstroke was one following in the usual or expected way. On the contrary while the insured was so voluntarily exposed, the sudden prostration or sunstroke occurred and it is not the usual happening under such circumstances in the common experience of men; but contained very forcibly and...