Levin v. John Hancock Mut. Life Ins. Co., 254.

• Decision Date: 30 March 1945
• Docket Number: No. 254.,254.
• Citation: 41 A.2d 841
• Parties: LEVIN v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: D.C. Court of Appeals

41 A.2d 841

LEVIN

v.JOHN HANCOCK MUT. LIFE INS. CO.

No. 254.

Municipal Court of Appeals for the District of Columbia.

March 30, 1945.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Sara Levin against John Hancock Mutual Life Insurance Company on accident clause of life insurance policy. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Arthur L. Willcher, of Washington, D. C. (Julian H. Reis, of Washington, D. C., on the brief), for appellant.

Arthur P. Drury, of Washington, D. C. (Benjamin S. Minor, John M. Lynham, and John E. Powell, all of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

Appellant is the widow of Nathan J. Levin and beneficiary of a policy of insurance written on his life by appellee. Upon his death appellee paid the beneficiary $1000 representing the basic amount of the policy but refused payment of an additional $1000 which was claimed by virtue of the allegedly accidental death of insured. The trial court directed a verdict against appellant and this appeal has been taken to determine the correctness of that ruling.

The applicable part of the policy is contained in a rider or endorsement, by which the company bound itself for an additional premium to pay double indemnity-or $2000 instead of $1000--

‘Upon receipt of due proof of the death of the insured prior to the anniversary of the policy nearest his sixty-fifth birthday, as the result of bodily injury received after this contract becomes effective, caused solely by external, violent and accidental means, of which there is a visible wound or contusion on the exterior of the body * * * and that such death occurred within ninety days after such injury and as a direct result thereof, independently and exclusive of all other causes * * *.’ (Emphasis supplied.)

The insured, Nathan Levin, was employed as assistant manager and salesman in a shoe store. One night he and the manager were shifting merchandise cases on the first floor of the store and replacing them with tables from the basement. Empty, the cases weighed 75 to 100 pounds and filled with shoes, approximately 150 pounds. They were enclosed at the ends, awkward to handle and a person moving them had to assume a straddling position. The stairway to the basement was extremely narrow, allowing only about an inch clearance on each side; also the walls were so constructed that it was necessary to upend the tables in making a turn and required a great deal of ‘wiggling and waggling’ of the tables. After about three hours of such work the insured sat down and complained that he was tired, that he had a pain in his side, and said he thought he had strained himself. He rested for some fifteen minutes and then continued to work for about another hour. On the way home he again complained of the pain in his side and again said he had strained himself. The testimony of the manager of the store as well as a written statement of insured himself (furnished in connection with his Workmen's Compensation Insurance) disclosed that insured did not on the occasion involved slip or fall or have any mishap.

Medical examination revealed that insured had sustained a hernia. (His statement, above referred to, averred that he had never previously had a hernia or worn a truss.) A month later he was operated on for the hernia, had an uneventful recovery and left the hospital in eighteen days. Two days later, however, he became seriously ill and died. The attending physician gave it as his opinion that an embolism (blood clot) had resulted from the operation and had travelled either to the heart or lung and had caused a stoppage of the coronary artery, which in turn caused death. The physician also said that it is not necessary to have a mishap such as a slip or fall in order to have a hernia; that some persons are born with hernias and that the condition can result from a weakening of the abdominal muscles without any particular strain being put on them. He also said that the insured had a thin abdominal wall and a lagging of the intestines and that within three months preceding the alleged injury he had advised insured to wear athletic trunks for support. He also said that the father and mother of insured had heart trouble and that a year before the operation he had made an electro-cardiogram of insured which showed some evidence of heart damage; also that persons can die from a stoppage of the coronary artery without ever having been operated on.

We must decide whether the trial judge was right or wrong in taking the case from the jury and ruling as a matter of law for the insurance company. We think he was right.

An almost identical case was recently before the United States Court of Appeals for the District of Columbia. Prudential Insurance Company v. Beckwith, 67 App.D.C. 209, 91 F.2d 240, 244. There a plumber died as a result of strain put upon his heart by helping to carry an old bath tub down the stairs from a second floor and a new one back up the same stairs. While doing such work there was no mishap such as slipping, falling or dropping the tub and no undue strain on insured or his co-worker other than the ordinary strain of weight carrying. There the policy, like the one here in suit, protected against death resulting from ‘bodily injury, solely through external, violent and accidental means.’ In denying recovery, the court pointed out that the policy did not protect against an accidental result but that payment under such a clause became due only when the means of the injury are shown to be accidental. Summing up the law the court said:

‘It may be observed again that when the insured and Clark carried the tub in the manner described in the agreed statement of facts there was no mishap of any kind, such as slipping,...