Hodges v. Mutual Ben. Health & Acc. Ass'n of Omaha

• Decision Date: 18 December 1942
• Docket Number: 28751.
• Citation: 131 P.2d 937,15 Wn.2d 699
• Court: Washington Supreme Court
• Parties: HODGES et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N OF OMAHA.

131 P.2d 937

15 Wn.2d 699

HODGES et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N OF OMAHA.

No. 28751.

Supreme Court of Washington

December 18, 1942

Department 2.

Action by Donald E. Hodges and another against the Mutual Benefit Health & Accident Association of Omaha on a policy providing benefits for death resulting from bodily injuries sustained through purely accidental means. From an adverse judgment the defendant appeals.

Reversed with instructions to dismiss the action.

Appeal from Superior Court, Snohomish County; Charles R. Denney judge.

Preston Thorgrimson, Turner, Horowitz & Stephan, of Seattle, for appellant.

Clarence J. Coleman, of Everett, for respondent.

SIMPSON Justice.

Plaintiffs as beneficiaries of an insurance policy issued to Leon Wilber Hodges, instituted this action to collect the amount mentioned in the policy.

The case was tried to a jury. At the conclusion of plaintiffs' case the defendant challenged the legal sufficiency of the evidence to justify a verdict by the jury and moved for a dismissal of the action. The motion was denied. Defendant did not introduce evidence and the case was submitted to the jury resulting in a verdict in favor of plaintiffs.

Defendant presented motions for judgment n.o.v., or, in the alternative, for a new trial. These motions were denied. Judgment was entered upon the verdict and defendant has appealed.

The assignments of error are in overruling the challenge to the legal sufficiency of the evidence, in denying appellant's motion for nonsuit, in refusing appellant's request for an instructed verdict, in denying appellant's motion for judgment notwithstanding the verdict, and in entering judgment for respondents.

The facts, as presented to the jury, are these: October 31, 1940, appellant issued its certificate of insurance to Leon Wilber Hodges. The insuring clause of the policy read:

"Mutual Benefit Health and

Accident Association

"Omaha

"(Herein called Association)

"Monthly benefits $30.00

"Maximum Monthly Benefits $60.00

"Regular Death Benefit $750

"Maximum Death Benefit $1,500

'Hereby Insures Leon Wilber Hodges (Herein called the Insured) of City of Granite Falls, State of Washington, 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 during any term of this policy, through purely Accidental Means (Suicide, sane or insane, is not covered. * * *'

Part 'A' of the policy provided: '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 the following specific losses within thirteen weeks, the Association will pay: For loss of Life $750.00. * * *'

The insured was an able-bodied man, fifty-five years of age who had been engaged in road construction work. He was very fond of dancing and had been a member of a dancing club for two or three years. The dances were held once every two weeks and generally lasted from nine or nine-thirty in the evening until about midnight. Usually the insured continued to dance from the start until midnight. December 21, 1940, he attended one of the regular meetings of the club and, as usual, took part in all of the dances. During the later part of the evening, when he was dancing a fast fox trot, he said to his dancing partner 'I have to quit, it is too much for me,' and that his left side and shoulder hurt him. The insured then went to his home and told his son Donald of his condition. Donald Hodges took his father to the hospital, but just as they arrived, Mr. Hodges died. Dr. W. D. Smith, in answer to a hypothetical question, testified that Mr. Hodges died as the result of a coronary occlusion or blood clot, which means 'a blocking of the arterial blood vessels.' Dr. Smith also testified: 'It must have been a thrombosis or a thromba formed at the entrance to the coronary artery and the violent exercise of dancing increased the flow of blood and forced the clot that had formed there into the coronary artery and produced a complete block.'

He testified further:

'Q. I will ask you to state whether or not if a layman might call it heart trouble, if this condition might be precipitated by an action or a strain? A. Yes.'

Counsel for appellant indicated their contention in the following language: 'The insured, according to the undisputed evidence in the case, died of a heart attack which came on him while he was dancing. Nothing 'unforeseen,' 'unexpected,' or 'unusual' had occurred to bring on this attack. He was not over-exerting himself in the sense of doing anything different or taxing his strength any more than he had been doing regularly for a number of years.'

The questions presented for consideration are: Did the death of the insured result from bodily injuries sustained through purely accidental means, and were the bodily injuries which caused the death of the insured sustained through accidental means independently and exclusively of disease?

This court has had occasion to consider questions of this nature in the following cases: Horsfall v. Pacific Mutual Life Ins. Co., 32 Wash. 132, 72 P. 1028, 63 L.R.A. 425, 98 Am.St.Rep. 846; Carpenter v. Pacific Mutual Life Ins. Co., 145 Wash. 679, 261 P. 792; Bjorklund v. Continental Casualty Co., 161 Wash. 340, 297 P. 155; McNally v. Maryland Casualty Co., 162 Wash. 321, 298 P. 721; Mary Hill v. Great Northern Life Ins. Co., 186 Wash. 167, 57 P.2d 405; Kane v. Order of United Commercial Travelers, 3 Wash.2d 355, 100 P.2d 1036; Zinn v. Equitable Life Ins. Co., 6 Wash.2d 379, 107 P.2d 921; and Graham v. Police & Firemen's Ins. Ass'n, 10 Wash.2d 288, 116 P.2d 352.

No two cases of this nature come Before the courts on parallel facts and although we do announce and follow basic rules, it is apparent that each case must, to a very large extent, depend upon facts peculiar to itself.

While it is impractical to discuss at length all of the cases just cited, we deem it proper to refer to each of them briefly.

In the Horsfall case, the policy insured against bodily injuries 'caused solely by external, violent, and accidental means.' [32 Wash. 132, 72 P. 1029, 63 L.R.A. 425, 98 Am.St.Rep. 846.] The facts in that case showed that the insured, a blacksmith by occupation, was a healthy, robust man, capable of lifting from 200 to 250 pounds, and was fatally injured while lifting one end of a long iron bar weighing 350 to 400 pounds while standing in an awkward or danagerous position on a pile of iron and reaching to a point below his feet to lift his end of the bar. Upon those facts, this court held that the death was caused by accidental means. The court, in passing upon the questions present in that case, defined accident to be: 'Death from any unanticipated event, which happens as by chance, or which does not take place according to the usual course of things.'

The facts in the Carpenter case disclose that the insured contacted infection through abrasions upon his...