Insurance Company of North America v. English

• Decision Date: 31 May 1968
• Docket Number: No. 25187.,25187.
• Citation: 395 F.2d 854
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Edna Talley ENGLISH, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

395 F.2d 854 (1968)

INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Edna Talley ENGLISH, Appellee.

No. 25187.

United States Court of Appeals Fifth Circuit.

May 31, 1968.

W. F. Goodman, Jr., Jackson, Miss., William J. Threadgill, Columbus, Miss., for appellant; Threadgill, Hicks & Smith, Columbus, Miss., Watkins & Eager, Jackson, Miss., of counsel.

Harvey S. Buck, West Point, Miss., Raymond B. Dycus, Smithland, Ky., Hunter M. Gholson, Burgin & Gholson, Columbus, Miss., for appellee; Burgin & Gholson, Columbus, Miss., for counsel.

Before GEWIN and COLEMAN, Circuit Judges, and HUGHES, District Judge.

HUGHES, District Judge:

In this case Mrs. Edna Talley English, beneficiary of an insurance policy on the life of Elbert W. English recovered judgment in the district court against Insurance Company of North America, hereinafter called INA. We affirm.

This insurance contract in question was a group policy executed in Tennessee between Tennessee Valley Authority and INA and issued for employees of T.V.A. Premiums were paid by the employees through salary deductions.

Mr. English was employed by T.V.A. as a transmission substation operator in West Point, Mississippi, where he resided continuously from the date of his employment until his death. His duty was to control the flow of electric current at the substation by operating switches. In the performance of his work he was directed by a dispatcher in Alabama.

On the morning of October 23, 1962, English, while operating the switches failed to follow the proper switching sequence and erroneously opened a loaded circuit. Four hundred and sixty kilo-volts of power arced into the air and grounded, producing a loud noise and a tremendous flash of light seen a distance of three miles. A substantial amount of equipment in the substation was damaged and pieces of insulation were thrown as far as fifty feet.

The dispatcher in Alabama, noticing the irregular surge of power, attempted to reach English by telephone. After approximately seven minutes English answered, appearing dazed but coherent. He was able to relay information, some, however, incorrect, and to follow additional instructions given by the dispatcher. A co-worker, alerted by telephone, arrived at the substation a few minutes later and checked the switches. English spoke to him and again, by telephone, to the dispatcher at which time he appeared coherent. While English was on the telephone the other operator heard a noise, and on returning he found English lying on the floor motionless except for a quiver of his lips. English was dead upon the arrival of the doctor and ambulance. The district judge found that "the only outward mark on his body was that his eyebrows were singed."

An autopsy resulted in the diagnosis that the cause of death was "acute coronary occlusion." The pathologist's report indicated "severe coronary atherosclerosis" in the right coronary artery and other parts of the heart.

Four medical experts testified. The pathologist was of the opinion that the stress caused by the switching incident combined with the advanced atherosclerosis to precipitate formation of the blood clot in the coronary artery (thrombosis) and to cause the death of English. He characterized English's heart and artery condition as a "progressive disease," an "active disease, which was a constant threat to his life" and testified that "the amazing thing is that he lived as long as he did with his arteries in this condition." His conclusion was that "the severe pre-existing coronary disease as well as this emotional experience were both contributing causes of the man's death."

A cardiologist and internist testified that English died of a heart attack which was precipitated by emotional stress accompanying the incident of his switching error. He believed that English developed ventricular fibrillation, a condition of the heart in which the various muscles of the heart contract without co-ordination and, consequently, the heart becomes ineffective in doing its normal job of pushing the blood around in the system, causing the patient to die as a result of lack of circulation. On cross-examination, he testified that the blood clot found at the autopsy might have formed after English's death, "because when the heart stops and the blood stops flowing then often one finds clots in the arteries of the system." He conceded that English's arteries were afflicted with "a progressive disease which is a constant threat to his life and from which he could have died at any time, and that this disease was a contributing cause of his death."

The general practitioner who attended English at the substation testified that English was "scared to death," that he died of a heart attack precipitated by fright and that "if there had been no event to precipitate the heart attack the patient might well be living today." He characterized the atherosclerosis as `latent and dormant", meaning "not having symptoms for it."

Dr. Rosenblatt, a cardiologist, testified that, in his opinion, English's death was not caused by fright, that the atherosclerosis was extensive and progressive and not latent, and that it created a constant danger of thrombosis from which "he was prone to die suddenly at any time." He expressed amazement "that the man lived as long as he did, not why he died." It was his view that death was coincidentally related to his experience rather than causally related.

It is undisputed that English was unaware of his heart disease, that he had undergone two complete medical examinations during his TVA employment and that on both occasions his cardiovascular system was certified as normal. English was 55 years of age when he died.

The policy issued to English insured "against loss resulting directly and independently of all other causes from bodily injuries caused by accident."

On this appeal INA makes four contentions: (1) the policy is a Tennessee contract and must be construed in accordance with established Tennessee law, (2) death did not result directly and independently of all other causes from accident, (3) the policy requirement of bodily injury was not satisfied, (4) the court's charge was prejudicial to INA.

With reference to the first point, whether the contract should be construed in accordance with Tennessee law, it should be pointed out that the following two clauses of the contract refer to the law of the state of residence of the insured:

Any provision of this policy which, on its effective date, is in conflict with the statutes of the state in which the insured resides on such date, is hereby amended to conform to the minimum requirements of such statutes. No action shall be brought after the expiration of three years (or the minimum time, if more than three years, permitted by the law of the state where the insured resides) after the time written proof of loss is required to be furnished.

As has been stated. English was continuously a resident of Mississippi from the effective date of the policy until his death.

The trial judge determined that Mississippi state law governed the construction of the policy and we adopt the portion of his opinion dealing with that question reported at 270 F.Supp. 713 at 715, 716.

As to the question of whether death was caused by accident "directly and independently of all other causes" the trial judge's opinion contains a well-documented review of Mississippi cases involving this question and we adopt the applicable portion of his opinion reported at 270 F.Supp. 713, 719, 728. We refer briefly to only two of the cited cases. The landmark decision is United States Fidelity and Guaranty Company v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605 (1921). The policy involved in Hood insured against "the effects resulting directly and exclusively of all other causes from bodily injury sustained * * * through accidental means." The insured, a man 56 years of age fell in his yard striking the back of his head on the frozen ground, which was heavily covered with ice. He was in bed at home and in the hospital, dying after fifteen days. It was the contention of the insurance company that death did not result "directly and exclusively of all other causes * * * through accidental means." The evidence revealed that the insured had suffered from high blood pressure and some kidney trouble, but an examination a few days before the accident found his condition better than it had been in years, and it was the doctor's opinion that while the accident operated upon the diseased condition his death was caused by the fall accompanied by uremia. The Supreme Court in affirming a judgment for the plaintiff declared at p. 119:

"We think that, if the accident is the proximate cause of the death and sets in motion or starts a latent or dormant disease, and such disease merely contributes to the death after being so precipitated by the accident, it is not a proximate cause of the death nor a contributing cause within the meaning of the terms of the policy."

In the recent case of Peerless Insurance Company v. Myers et al., Miss. 192 So.2d 437 (1966), the policy provided for recovery for "loss resulting directly and independently of all other causes from accidental bodily injury." More than a year before her death the insured had suffered a heart attack, but since that time her heart condition was found to have been latent and dormant, not active, or virulent, and her general health was satisfactory. The day of her death she and two travelling companions became ill from carbon monoxide gas emitted from the exhaust of a taxicab in which they were riding with all windows closed. The trial court found that the carbon monoxide poisoning activated the latent heart condition of the insured, resulting in her death. Judgment for plaintiff was affirmed, the Supreme Court declaring at p. 439:

"Recovery may be had where the accidental injury aggravates, renders active, or sets in motion a latent or dormant

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