Interstate Business Men's Acc. Ass'n v. Lewis

• Decision Date: 07 April 1919
• Docket Number: 5278.
• Citation: 257 F. 241
• Parties: INTERSTATE BUSINESS MEN'S ACCIDENT ASS'N v. LEWIS.
• Court: U.S. Court of Appeals — Eighth Circuit

257 F. 241

INTERSTATE BUSINESS MEN'S ACCIDENT ASS'N v. LEWIS.

No. 5278.

United States Court of Appeals, Eighth Circuit.

April 7, 1919

R. M Haines, of Des Moines, Iowa (Dunshee, Haines & Brody, of Des Moines, Iowa, on the brief), for plaintiff in error.

Eugene D. Perry, of Des Moines, Iowa (H. H. Stipp, R. J. Bannister Vincent Starzinger, and H. B. Bradbury, all of Des Moines Iowa, on the brief), for defendant in error.

Before CARLAND and STONE, Circuit Judges, and AMIDON, District Judge.

CARLAND Circuit Judge.

This is an action to recover a death indemnity alleged to be due and payable by the plaintiff in error, hereafter defendant, to the estate of John F. Bailey, deceased. The case was heard by the trial court, sitting without a jury, upon the pleadings and a stipulation of facts. Judgment was rendered in favor of the defendant in error, hereafter plaintiff. Section 10, article 6, of the articles of incorporation of defendant, and paragraphs 7 and 8 of the stipulation of facts, read as follows:

'Section 10. The association shall pay to the beneficiary designated in writing by any member of the accident department, who must be either the surviving wife or heir of such member, the proceeds of one assessment of $2 on each member of the accident department in good standing at the time of the accident, to an amount not exceeding $5,000, on account of the death of any member of the accident department occurring within 90 days from the happening of the accident and resulting directly and without intervening cause from a bodily injury sustained by the member while in good standing and effected solely by external, violent, and accidental means, subject only to the conditions, provisions and limitations of the by-laws.'

'(7) That prior to his injury the insured, John F. Bailey, was a strong and vigorous man, actively engaged in his business, and apparently in excellent health. That on or about the 5th day of July, 1915, he discovered a small pimple on the right side of his upper lip. That upon discovering said pimple, while alone and in the absence of any eyewitness, he removed his gold scarf pin from his necktie and intentionally pricked said pimple with said scarf pin. That his lip at said place became immediately infected with staphylococci infection from the pricking of said pimple with said scarf pin. That said infection spread rapidly over the right side of his face and extended to his nose and eye. That medical treatment was received by said insured, but that his physicians were unable to arrest the spread of said infection, which resulted in basilar meningitis, due to staphylococci infection, from which the insured died on July 18, 1915.

'(8) That the physicians in attendance upon said insured would testify that, in their opinion, the death of said insured was caused by basilar meningitis resulting from the infection to his lip, caused by the pricking of the pimple on said lip, by the insured, with said scarf pin, and that, for the purpose of avoiding the expense and delay of taking depositions, it shall be taken as true that the scarf pin used by insured in pricking his lip communicated or caused the infection by being introduced into the tissues of the lip, and that the infection, so caused, proximately resulted in basilar meningitis, which was the eventual cause of death.'

It is claimed that the trial court erred: (1) In concluding as matter of law that the death of the deceased was due to a bodily injury effected by external, violent, and accidental means. (2) In concluding as matter of law that the liability of the defendant was not limited to the sum of $500.

The trial court interpreted the stipulation of facts above quoted as meaning that the scarf pin itself carried the infection, and as there was no evidence that the deceased knew this fact, nor could not be presumed to know it, the use of the pin thus infected was an accidental means causing death, within the meaning of section 10, article 6, above quoted.

Counsel for defendant admits that the stipulation of facts declares that the pin did carry the bacteria into the tissues of the lip of deceased, but insists that as to whether these bacteria originated on the skin of the lip or in the pus, or were present on the pin when selected, is a fact as to which the record is silent. We are satisfied that the interpretation placed upon the stipulation of facts by the trial court is a reasonable one, and that which the parties intended. If the pin communicated the infection, as the stipulation says, the reasonable conclusion is that the pin itself must have been infected.

Counsel for defendant further contends that, if the deceased selected the scarf pin in ignorance of its infected condition to use in making a voluntary puncture of the skin, this fact would not make the means of death accidental. To sustain this proposition, a distinction is sought to be drawn between the intentional selection of an instrument in ignorance of some peculiar property which it possessed, and the inadvertent selection of an instrument known to be inappropriate. The last-named situation it is admitted might be an accidental means; but in inadvertently selecting an instrument known to be inappropriate there is no intention of selecting that instrument; neither was there in the case at bar, any intention to select an infected instrument. Such refinement may be indulged in as a matter of intellectual pleasure, but in the practical adjustment of the rights of parties to an insurance contract it ought not to be given much weight. There is no evidence or finding that deceased knew as a fact that the scarf pin was infected, and we are not prepared to decide that the knowledge as to bacterial infection has been so widely diffused that the deceased was bound to know that fact. The stipulation of facts is silent upon the question; but as the trial court found in favor of the plaintiff it must have found that the deceased did not know, nor could he be presumed to know, of the presence of bacteria upon the pin.

We are therefore of the opinion that the death of deceased was due to a bodily injury effected by external, violent, and accidental means. Without citing all the authorities bearing upon the question, we cite those which clearly in our opinion sustain the position here taken. Western Commercial Travelers' Ass'n v. Smith, 85 F. 401, 29 C.C.A 223, 40 L.R.A. 653 (Eighth Circuit); Lewis' Executrix v. Ocean Accident & Guarantee Corp., Ltd., 224 N.Y. 18, 120 N.E. 56; Miller v. Fidelity & Casualty Co. (C.C.) 97 F. 836; Healey v. Northwestern Mutual Accident Ass'n, 133 Ill. 556, 25 N.E. 52, 9 L.R.A. 371, 23 Am.St.Rep. 637; United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 Sup.Ct. 755, 33 L.Ed. 60; Sinclair v. Maritime Passenger Assurance Co., 3 El. & El. 478; Brintons, Ltd., v. Turvey, A.C. 230, 2 Ann.Cas. 137; H. P. Hood & Sons v. Maryland Casualty Co., 206 Mass. 226, 92 N.E. 329, 30 L.R.A. (N.S.) 1192, 138 Am.St.Rep. 379; Railway Mail Ass'n v. Dent, ...