Herthel v. Time Ins. Co., 221 Wis. 208 (WI 1/8/1936)

• Citation: 221 Wis. 208
• Parties: HERTHEL, Respondent, v. TIME INSURANCE COMPANY, Appellant.
• Decision Date: 08 January 1936
• Court: United States State Supreme Court of Wisconsin

Page 208

221 Wis. 208

HERTHEL, Respondent, v. TIME INSURANCE COMPANY, Appellant.

Supreme Court of Wisconsin.

January 8, 1936.

April 28, 1936.

Insurance: Accident policies: Accidental means: Sole cause of injury: Strain sustained through physical exertion, resulting in death of insured afflicted with diseased condition of heart.

1. To constitute accidental means the sole cause of an injury within accident policies, where a disease or bodily condition exists prior to the accident, it is not necessary that the injury or the results thereof would have been as severe had the disease or bodily condition not existed, and it is sufficient if the accidental means would have solely caused some considerable injury had the disease or bodily condition not existed, but, if no considerable injury at all would have resulted had the insured not been afflicted with the existing disease or condition, the accidental means cannot be considered as the sole cause of the injury. p. 214.

2. Physical exertion in pulling a boat from a lake and up into a yard, causing a strain on the insured's heart, as a result of which the insured died of heart failure, did not constitute the sole cause of the heart injury that resulted in his death, within an accident policy, where the insured would not have suffered any considerable injury had he not been afflicted at the time with a diseased condition of the heart. p. 214.

WICKHEM, J., dissents.

APPEAL from a judgment of the circuit court for Waukesha county: C. M. DAVISON, Circuit Judge. Reversed.

Action by Jennie Herthel against the Time Insurance Company commenced February 18, 1935. From a judgment for the plaintiff, entered May 14, 1935, the defendant appeals.

This is a suit to recover for a death loss under an accident policy. Two questions were submitted to the jury: (1) Did the deceased receive an injury through external violence or accidental means? and if he did, (2) was such injury a sole cause of the insured's death? Both were answered in the affirmative. Judgment went upon the verdict for the plaintiff.

The death resulted from heart failure sustained while the deceased was pulling a boat from the water of a lake and up into his yard, a considerable distance from the shore. A pre-existing condition of the heart had a causal connection with the attack, in the sense that, had the heart been normal, the injury to it that immediately caused the heart failure during the pulling of the boat would not have resulted under any view of the circumstances. On the other hand, had the attack not occurred, or other like attack been brought on by strain, the deceased might have lived on for many years, perhaps for the ordinary life span. He was forty-two years of age, and the evidence would justify the inference that he had previously been in good health. The pre-existing condition of the heart was a chronic valvular condition that had lasted so long that the valves had become calcified. There was a hardening that had taken years to develop. The main part of the valves had changed to bone, and this condition had caused the heart muscle to thicken to twice its normal size. Two physicians present at an autopsy signed a report stating that the "immediate cause" of the heart attack that resulted in the death "was the physical effort which immediately preceded" it. The attending physician gave in the death certificate as the cause of death "aortic mitral insufficiency present since childhood," and the contributory cause as an "acute cardiac dilation induced by overexertion in hauling boat out of water." The injury to the heart sustained at the immediate time was, as one of the physicians expressed it, an action "fracture" or "breaking down" of the heart. Other matters material to our decision are stated in the opinion.

For the appellant there was a brief by Rouiller, Dougherty, Arnold & Kivett, and oral argument by Michael H. Keelan, all of Milwaukee.

For the respondent there was a brief by Wurster & Scheinfeld, and oral argument, by William B. Collins, all of Milwaukee.

The following opinion was filed March 3, 1936:

FOWLER, J.

The appellant contends that the findings of the jury that, (1) the deceased "received an injury through external violence or accidental means," and that (2) such injury "was a sole cause of the insured's death" are not sustained by the evidence.

The coverage clause of the policy in suit was somewhat broader than those commonly involved in the adjudicated cases, and insured against loss from death resulting from "personal bodily injury . . . effected directly and independently of all other causes through accidental means, and which injury causes total and continuous inability to engage in any and every kind of business or labor." The phrases "through external violence" and "directly or indirectly," commonly used in accident policies, do not occur in the clause. That the deceased suffered a heart injury while pulling up the boat is undisputed, so that the only question involved in (1) is, Was the injury sustained "through accidental means?" The deceased never recovered from the injury sustained while pulling up the boat, and died as a result thereof three days after receiving it. The injury was thus caused "directly" by the accidental means found, if that finding can be sustained, and the disability caused was "total and continuous." So that the only fact to be determined by question (2) was whether the "accidental means" found by question (1) was the sole cause of the heart injury. To the word "sole" in this question must be attributed the meaning of the words of the coverage clause "independently of all other causes."

(1) Whether the finding of the jury upon the first question submitted to the jury is supported by the evidence we shall not determine or discuss at any length. The meaning of the phrase "accidental means" in the policy has been considered in a multitude of adjudicated cases. The injury in the instant case was due to a strain on the heart. There are numerous cases to the point that a strain sustained through physical exertion voluntarily undertaken, as a result of which a blood vessel bursts or other...