Jacobson v. Mut. Ben. Health & Accident Ass'n

• Decision Date: 16 January 1940
• Docket Number: No. 6613.,6613.
• Citation: 289 N.W. 591,69 N.D. 632
• Court: North Dakota Supreme Court
• Parties: JACOBSON v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

69 N.D. 632

289 N.W. 591

JACOBSON

v.MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

No. 6613.

Supreme Court of North Dakota.

Jan. 8, 1940.

Rehearing Denied Jan. 16, 1940.

On Petition for Rehearing.

Syllabus by the Court.

1. The term “accidental means” in an insuring clause of a health and accident insurance policy which insures against loss of life resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means includes such means as produce effects which are not their natural and probable consequences. An effect which does not ordinarily follow, an effect which can not be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and can not be charged with the design of producing, is an effect produced by accidental means.

2. If the insured, during his work, is subjected to such great bodily strain as results in injury to the heart, such injury is a bodily injury within the meaning of the term employed in the foregoing insurance policy even though there may be no wounds or bruises upon his body.

3. Recovery for loss of life resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means can not rest upon pure speculation, and where the cause of such death is claimed to be the consequence of over-exertion, direct connection between the over-exertion and the death must be shown by satisfactory proof.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Action by Clara Jacobson against the Mutual Benefit Health & Accident Association to recover under a health and accident policy insuring against loss of life resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means. From judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and new trial ordered.

MORRIS, J., dissenting in part.

J. K. Murray, of Bismarck, for plaintiff and respondent.

Zuger & Zuger, of Bismarck, for defendant and appellant.

BURR, Judge.

On January 28, 1928 the defendant company issued a policy of insurance to Henry J. Jacobson, which policy, among other provisions, sets forth what are known as “Insuring Clause” and “Part A.”

Under the “Insuring Clause” the defendant insured Henry J. Jacobson “against loss of life, * * * or time, resulting directly and independently of all other causes, from bodily injuries sustained through purely Accidental Means, * * * and against loss of time on account of disease contracted during the term of this Policy * * *.”

“Part A” provides: “If the Insured shall, through accidental means, sustain bodily injuries as described in the Insuring Clause, which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the Insured from the date of the accident * * *,” the defendant would pay certain stated sums. The italics are ours.

The only portion of the policy with which we are concerned is the one dealing with the insurance against loss of life. It will be noted that this has a scope broader than the provision for payment under “Part A.” Both provisions deal with loss resulting from bodily injuries sustained through accidental means; but the provision insuring against loss of life does not exclude disease which may be the direct result of bodily injuries. “Part A” deals with disablement. While the “Insuring Clause” deals with loss of time, this loss must be on account of disease. The bodily injuries insured against in “Part A” exclude disease.

This policy was kept in force during all the time involved in this controversy and the plaintiff is the beneficiary named in the policy.

There is little, if any, dispute in the facts. On July 23, 1938 the insured was fifty years of age and in good physical condition, strong, robust, and active. He was an employee of the Patterson Land Company and on that day undertook to load a wild horse into a truck. Sometime immediately prior to this time others had made the attempt and failed. The horse was rounded into a barn, roped, and a war bridle put on. The insured worked and struggled with the horse for a period of about two hours, during which time the horse dragged the insured around. During the struggle with the horse he was not knocked down nor kicked, nor did he receive any injuries to the body that were noticeable from inspection, nor was any internal injury shown. Eventually he succeeded in getting the horse onto a truck.

The exertion was so strenuous that the insured was completely exhausted at the end of the struggle, complained of being tired, and when he went home complained of being sick and went to bed. Up to that time he had been in apparently good health and worked hard with no complaints. He was not confined to his bed all the time and did occasional work. About the 2nd of August he worked for two hours in company with others in shoveling grain, but from time to time had complained of not feeling well.

On August 14 a doctor was called and found him in bed with an attack of acute influenza and high fever. Upon a later examination the doctor discovered a situation which he termed a coronary thrombus, “a blood clot forming in one of the main blood vessels that supplies the heart muscles.”

The insured died August 16, 1938, and this physician certified that the death “was due to coronary thrombosis and influenza.” The record does not show any autopsy.

At the trial the doctor testified that this condition of coronary thrombus could not have existed prior to the time of the exertion with the horse; that when he examined the insured he found no irregularity of the heart or any heart trouble except that the heart was rapid as “a natural sequence of his fever”; that influenza causes a rapid heart action; that the influenza might have caused the coronary thrombosis of which he died; that this condition could be caused by the severe exertion of July 23; that it was entirely out of the question for him to state whether the blood clot was the result of the influenza or whether the exertion had so weakened his system that he was subjected to this condition; that the coronary thrombosis could have been caused by the influenza, but that in his opinion the exertion had so weakened his condition that he was subjected to the influenza and that “the illness that followed afterwards was the influenza and finally the thrombosis.” He testified that he saw the patient some three weeks after this struggle; that he told him “he was suffering at that time with acute influenza”; that he had a high fever; that it was reasonably probable that the influenza could have come from the injury in this, that the exertion weakened his condition so that he would have less resistance; that “If his resistance to that infection becomes lowered then he may become sick from germs he has carried with him for years and years, and germs that hadn't caused him any harm before that”; that an injury which came through the exertion could give rise to a bruise that could be responsible for the blood clot; and that it was his opinion that the condition of coronary thrombosis and influenza was “in all probability brought about by this injury or his tussle with the horse * * *”; that he could not answer definitely whether he would have contracted influenza or thrombosis if it had not been for the injury. Later he stated that this exertion could have prepared the ground for the heart trouble and might have started the change; that the influenza might have caused the thrombosis and that influenza might cause heart trouble and that one or both may have caused the thrombosis. When asked with reference to whether the coronary thrombosis was caused by the influenza and by the prior exertion and whether “You couldn't state that one or the other definitely was, it is impossible?” (that is, it is impossible to state whether caused by one or the other), he said, “That is entirely out of the question”; but from his examination he could state that the coronary thrombosis might have been caused by the influenza. He examined the patient and found no abrasions or bruises on the body.

The defendant declined to pay under the terms of the policy and this action was brought. The complaint seeks to recover for loss of life according to the terms provided for in the “Insuring Clause” and “Part A.”

The answer denies death from accidental means and all liability under the policy.

The case was submitted to a jury and at the close of plaintiff's case defendant moved to dismiss on the ground “that by the terms of this policy * * * it is specified, ‘if the insured shall through accidental means sustain bodily injuries and result in his death”’; that if the insured received any injuries they “were not caused through accidental means as required by the terms of the policy”; that it was a condition precedent to recovery that not only should the insured “have died from the bodily injuries sustained through accidental means, * * * in addition, that those injuries independently and exclusively of disease and all other causes shall result in his death, and that there is no evidence in this case that the over-exertion and the subsequent heart trouble, if caused by the over-exertion, was the sole cause of death.”

The defendant urged that the testimony shows clearly that the disease of influenza was a contributing factor to death and may have caused it; that the evidence shows the heart trouble was caused by influenza; that “there is no evidence showing the death of Henry Jacobson was caused directly by whatever bodily injuries he may have received in loading this horse.”

The motion was resisted and denied, and at the close of the entire case defendant moved for a directed verdict on the same grounds, which motion was denied.

The jury returned a verdict in favor of the plaintiff. Defendant moved for judgment notwithstanding the verdict or in the...