Jacobson v. Mutual Benefit Health & Accident Ass'n
| Decision Date | 08 January 1940 |
| Docket Number | 6613 |
| Citation | 289 N.W. 591,69 N.D. 632 |
| Court | North Dakota Supreme Court |
Rehearing Denied January 16, 1940, Reported at 69 N.D. 632 at 645.
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.
In action on health and accident policy insuring against loss of life resulting from injuries which " immediately continuously and wholly disable the insured from the date of the accident," evidence was sufficient to sustain a finding for beneficiary that insured sustained such injuries, where no objection was taken by insurer to instructions defining terms " immediately," " continuously" and " wholly disabled," and providing that beneficiary was required to show that injuries disabled insured in accordance with definitions and caused his death.
Zuger & Zuger, for appellant.
In an action on an accident insurance policy where there is no evidence either way, there is no presumption that death occurred through accidental means, but the presumption is rather that it was not the result of accident but of natural causes. United States Fidelity & G. Co. v. Blum, 270 F. 946; Shanberg v. Fidelity & C. Co. 85 C.C.A. 343, 158 F. 1; Traveler's Ins. Co. v. Selden, 78 F. 285; Carswell v. Railway Mail Asso. 8 F.2d 612; Baldwin v. North American Ins. Co. 22 F.2d 111; Lyon v. Traveler's Protective Asso. 25 F.2d 596; Hastings v. Traveler's Ins. Co. 190 F. 258; Burrell v. Provident Life & Acci. Ins. Co. 162 Tenn. 672, 39 S.W.2d 1031; Martin v. Traveler's Ins. Co. (Mo.) 276 S.W. 380; Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S.W. 920; Laventhal v. Fidelity & C. Co. 9 Cal.App. 275, 98 P. 1075; Rokes v. Amazon Ins. Co. 51 Md. 512, 34 Am. Rep. 323; United Benev. Society v. Vess, 120 Ga. 411, 47 S.E. 942; Letherer v. United States Health & Acci. Ins. Co. 145 Mich. 310, 108 N.W. 491; Letherer v. Phoenix Acci. & Sick Ben. Asso. 145 Mich. 313, 108 N.W. 492.
No recovery can be had under the policy if the bodily infirmity was the sole cause of death or if it was one of the causes of or contributed to the ultimate result of death. National Masonic Acci. Asso. v. Shyrock, 73 F. 774; White v. Standard Life & Acci. Co. 95 Minn. 77, 103 N.W. 735; Binder v. National Masonic Acci. Asso. 127 Iowa 25, 102 N.W. 190; Ackerman v. Minnesota Commercial Men's Asso. 184 Minn. 522, 239 N.W. 229; Brown v. Maryland Gas Co. 55 F.2d 159.
If a result is such as follows from ordinary means, voluntarily employed in a not unusual or unexpected way, it cannot be called a result effected by accidental means, but if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means. United States Mut. Acci. Asso. v. Barry, 131 U.S. 100, 33 L. ed. 60, 9 S.Ct. 755; Caldwell v. Traveler's Ins. Co. 305 Mo. 619, 267 S.W. 907, 39 ALR 56; Wiger v. Mutual L. Ins. Co. 205 Wis. 95, 236 N.W. 534.
J. K. Murray, for respondent.
Where the injury or death is the unusual, unexpected or unforeseen result of an intentional act, such injury or death is by accidental means even if there is no proof of mishap, mischance, slip or anything out of the ordinary in the act or event which caused such injury or death. Wiger v. Mutual L. Ins. Co. 205 Wis 95, 236 N.W. 534.
An effect which is not the natural or probable consequences of the means which produced it is produced by accidental means. Western Commercial Traveler's Asso. v. Smith, 85 F. 401, 40 LRA 653.
The term "accidental means" as used in a policy providing for double indemnity for death effected solely through external violence must be interpreted according to usage of the average man. O'Connell v. New York L. Ins. Co. 220 Wis. 61, 264 N.W. 253; Taylor v. New York L. Ins. Co. 176 Minn. 171, 222 N.W. 912; Druhle v. Equitable L. Ins. Co. 54 N.D. 517, 218 N.W. 220; Russell v. Glens Falls Indem. Co. 134 Neb. 631, 279 N.W. 287; Bennett v. Traveler's Protective Asso. 123 Neb. 31, 241 N.W. 781; Donohue v. Washington L. Ins. Co. 82 S.W. 780.
A cause does not cease to be violent and external because the insured has an idiosyncrastic condition of mind or body predisposing him to injury. Hazen v. Maryland Casualty Co. 79 P.2d 577.
Where the injured is incapacitated from performing any substantial part of his ordinary duties a case of total disability is present, although he is still able to perform a few minor duties. 1 C.J. 463.
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 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 2d 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.
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