Hastings v. Travelers' Ins. Co.

• Decision Date: 24 May 1911
• Docket Number: 1,898.
• Citation: 190 F. 258
• Court: U.S. District Court — Western District of Washington
• Parties: HASTINGS v. TRAVELERS' INS. CO.

190 F. 258

HASTINGS v. TRAVELERS' INS. CO.

No. 1,898.

United States Circuit Court, W.D. Washington, Northern Division.

May 24, 1911

Syllabus by the Court.

Hastings & Stedman, for plaintiff.

Bamford A. Robb, for defendant.

DONWORTH District Judge.

This is an action on a policy of insurance issued by the defendant to George W. Dunlap, insuring him 'against bodily injuries effected directly and independently of all other causes through external, violent and accidental means.'

The second amended complaint alleges that Mr. Dunlap, who weighed about 180 pounds, 'was vigorously raising himself in and from an arm chair in which he was then sitting, by placing his hands on the arms of said chair and raising himself up from said chair and lowering himself again in said chair by his hands and arms; that he did these acts several times at said time in close succession. ' It is further alleged that the effort produced an unusual, extraordinary, and unforeseen and not anticipated sprain and strain of the muscles of the heart, resulting in a dilation of the heart that the overexertion was 'so great as to produce a collapse of the organs of his system; and that he died as a result and on account thereof.'

The defendant denies the allegations as to the cause of death and pleads that the death resulted from pre-existing diseases and bodily infirmities.

The evidence shows that on the evening of January 18, 1910, George W. Dunlap, 54 years of age and of normal stature, was sitting with his wife in their lodgings in Pasadena, Cal. They had taken a long walk during the day, and he seemed to be in good health. He first sat in a rocking chair, and raised and lowered himself several times in the chair by the use of his hands and arms alone, remarking that he was pretty strong for an old man. He then moved from the rocking chair to a Morris chair and repeated the same exercise two or three times. He then gasped for breath and in a few moments died. A post mortem examination was held the next day by a capable physician, who discovered that prior to death Mr. Dunlap had an enlarged heart and hardened valves; but the immediate and proximate cause of death was his physical exertions, which produced a dilation of the heart.

Several physicians have testified concerning the usual condition of the heart of the average man of Mr. Dunlap's age and stature, and have expressed their opinions as to whether such a man can ordinarily undergo physical exercise of this character without injury. While these opinions do not altogether coincide, I do not consider them in conflict as to any material point in the case.

The evidence being all in, the defendant has moved the court to instruct the jury to find for the defendant on two grounds: First, that it appears from the evidence that the death of Mr. Dunlap was not caused by 'external, violent and accidental means,' but was the result of intentional acts; the only element of accident being the result itself. Secondly, that it appears from the evidence that the death of Mr. Dunlap was caused, in part at least, by a pre-existing enlargement of the heart and hardening of the valves.

The essential facts of the case are fairly free from controversy. There is no dispute as to what violence, if any, led up to the death of the deceased. It is admitted by the plaintiff that the only violence was the act of the deceased himself in lifting himself up and down two or three times in a chair, possibly two or three times in one chair and two or three times in another chair very soon afterwards.

The question is whether the death brought about in that way was caused by 'external, violent and accidental means.' Counsel for the respective parties have briefed the case with much research, and yet from the cases cited it does not appear that any court has ever held affirmatively on the question stated. It has been held that where a person is taking exercise with apparatus of some kind, and something unexpected happens causing injury, the case may be considered one of accident. Rustin v. Standard Life & Accident Co., 58 Neb. 792, 79 N.W. 712, 46 L.R.A. 253, 76 Am.St.Rep. 136; McCarthy v. Travelers' Insurance Co., 15 Fed.Cas. 1,254. So, also, where a person is lifting an object or handling a tool. Horsfall v. Pacific Mutual Life Insurance Co., 32 Wash. 132, 72 P. 1028, 63 L.R.A. 425, 98 Am.St.Rep. 846; Standard Life & Accident Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 51, 74 Am.St.Rep 112; Insurance Co. v. Burroughs, 69 Pa. 43, 8 Am.Rep. 212; Pervaugher v. Union Casualty Co., 85 Miss. 31, 37 So. 461; Atlanta Accident Association v. Alexander, 104 Ga. 709, 30 S.E. 939, 42 L.R.A. 188; Martin v. Traveler Insurance Co., 1 Fost. & F. 505. The lodging of meat in the windpipe during eating has been held to be an accident. American Accident Co. v. Reigart, 94 Ky. 547, 23 S.W. 191, 21 L.R.A. 651, 42 Am.St.Rep. 374. So, also, as to a death from blood poisoning brought about by a new shoe which caused an abrasion on the foot. Western Commercial Co. v. Smith, 85 F. 401, 29 C.C.A. 223, 40 L.R.A. 653. Undoubtedly death resulting from a fall may be accidental. Meyer v. Fidelity & Casualty Co., 96 Iowa, 378, 65 N.W. 328, 59 Am.St.Rep. 374; Hall v. American Masonic Accident Association, 86 Wis. 518, 57 N.W. 366. No authority more in point than the cases just mentioned has been called to my attention by plaintiff's counsel. Some of the language contained in the opinion in the case of Horsfall v. Pacific Mutual Life Insurance Co., 32 Wash. 132, 72 P. 1028, 63 L.R.A. 425, 98 Am.St.Rep. 846, if understood literally without regard to the facts of that case, would tend to sustain plaintiff's contention that where a rupture of the heart, not intentional, is the...