Kimball v. Mass. Acc. Co., 5542.

• Decision Date: 26 May 1922
• Docket Number: No. 5542.,5542.
• Parties: KIMBALL v. MASSACHUSETTS ACC. CO.
• Court: Rhode Island Supreme Court

117 A. 228

KIMBALL

v. MASSACHUSETTS ACC. CO.

No. 5542.

Supreme Court of Rhode Island.

May 26, 1922.

Exceptions from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Action by Emma H. Kimball against the Massachusetts Accident Company. Decision of court for defendant, and plaintiff excepts. Exceptions overruled, and case remitted, with directions to enter judgment upon decision.

See, also, 117 Atl. 230.

William J. Brown and Archibald C. Matteson, both of Providence, for plaintiff.

Edward C. Stiness, Daniel H. Morrissey, and Christopher J. Brennan, all of Providence, for defendant.

SWEENEY, J. This is an action of assumpsit to recover the amount due upon an accident Insurance policy issued by the defendant to Harry W. Kimball, July 16, 1914. The plaintiff is the beneficiary named in said policy and seeks to recover from the defendant on the ground that the death of Dr. Kimball was caused solely by accidental means within the terms of said policy. The action was tried by a justice of the superior court, jury trial having been waived, and decision was given for the defendant. The plaintiff has duly brought the case to this court upon her bill of exceptions and now claims that said decision was contrary to the law and the evidence and the weight thereof.

The policy insured Harry W. Kimball, by profession a physician and surgeon, against "loss or disability as herein defined, resulting directly, independently and exclusively of any and all other causes from bodily injury effected solely through accidental means." It contained many provisions and limitations, one of which was that—

"The insurance hereunder shall not cover any injury, fatal or nonfatal, sustained by the insured while participating in, or in consequence of having participated in, aSronautics, from ptomaines, or from disease."

The evidence proved that Dr. Kimball was a practicing physician specializing in dermatology; that he died March 28, 1920; and that the cause of his death was erysipelas.

The trial justice found that the deceased called Dr. Gifford, March 20, 1920, and complained of a boil on the back of his neck about where his collar button would come. He told the doctor that the boil had started about a week before and that he had been dressing and taking care of it himself. Dr. Gifford had treated the deceased for several abscesses prior to this time and recognized this one as being different from the others and concluded that erysipelas had developed. Dr. Richardson agreed with this diagnosis, and both of these experts testified that erysipelas is an infectious disease, and that for a person to develop it he must pick up the particular kind of an organism that causes the disease by direct contact.

Against the objection of the defendant, Dr. Gifford was permitted to testify that the deceased told him that he had seen three erysipelas cases within a week before he called Dr. Gifford. The trial justice found that the plaintiff's proof did not show that the erysipelas was effected by accidental means, and that the open boil became infected with the erysipelas germ in some unknown way.

The plaintiff claims that Dr. Kimball received the infection from contact with an erysipelas germ while engaged in the treatment of patients suffering from erysipelas, and that this infection was "bodily injury effected solely through accidental means." To support this claim, plaintiff cites the case of Hood & Sons v. Maryland Casualty Co., 206 Mass. 223, 92 N. E. 329, 30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379. In this case the policy sued upon was entitled "Manufacturers Employers Liability Policy." The contract which it contained was one of indemnity, in which the defendant engaged to make good to the plaintiff any loss or damage which it might sustain by reason of its liability to its employees for bodily injuries accidentally suffered by them while engaged in doing the work which they were employed to do. The insurance was "liability insurance," so called, and not insurance against accidents.

The liability insured against was that "imposed by law upon the assured for damages on account of bodily injuries or death accidentally suffered * * * by any employee." Plaintiff's employee, on duty as a hostler in its stables, contracted glanders and brought an action against the plaintiff for negligently putting him to work in the stable and thereby exposing him to the disease. Judgment was rendered in his favor, and then plaintiff brought the present action to recover the amount paid from the insurance company. The question before the court was whether the injury to the employee was brought about accidentally, within the fair scope and meaning of the policy, or whether it was the result of disease contracted while in the employ of the plaintiff but for which the defendant was not liable. The court held that the infection which caused the disease from which the employee suffered was due to accident, saying:

"It was in the nature of an accident that he was set to work upon or cleaning up after horses that had glanders, and it was in the nature of an accident that he became infected with the disease."

The court held the defendant liable to pay the damages which the plaintiff had paid to its employee.

The later case of Smith v. Travelers' Insurance Co., 219 Mass. 147, 106 N. E. 607, L. R. A. 1915B, 872, is more in point and is against the claim of the plaintiff. The court held that the plaintiff could not recover in an action brought on a policy of accident insurance wherein the deceased was insured against death resulting from "bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means." It appeared that the deceased was using a nasal douche, as he had...