Maryland Casualty Co. v. Massey, 5235.

• Decision Date: 15 April 1930
• Docket Number: No. 5235.,5235.
• Citation: 38 F.2d 724,71 ALR 1428
• Parties: MARYLAND CASUALTY CO. v. MASSEY.
• Court: U.S. Court of Appeals — Sixth Circuit

71 ALR 1428, 38 F.2d 724 (1930)

MARYLAND CASUALTY CO. v. MASSEY.

No. 5235.

Circuit Court of Appeals, Sixth Circuit.

February 6, 1930.

On Rehearing April 15, 1930.

E. B. Klewer, of Memphis, Tenn. (Klewer, Gailor & Exby, of Memphis, Tenn., on the brief), for appellant.

H. D. Minor, of Memphis, Tenn. (Burch, Minor & McKay, of Memphis, Tenn., on the brief), for appellee.

Before MOORMAN and HICKENLOOPER, Circuit Judges, and SIMONS, District Judge.

SIMONS, District Judge.

This is a suit upon an accident insurance policy issued to John T. Massey, in which the plaintiff was named the beneficiary in the event of death. On the morning of February 22, 1927, the insured, while in excellent health, plucked a hair from his nose. Thirty-six hours later evidence of infection developed, and on the 24th a pimple had formed on the base of his nose. This was given medical attention, but septicemia of a violent type had set in, and the insured died on March 1st. Blood specimens showed the presence of a germ known as the staphylococcus, a pyogenic or pus-forming germ. The insured held a policy in the Maryland Casualty Company, hereinafter referred to as the defendant, in the sum of $30,000. The policy covered death effected through accidental means, and provided that, in event of accidental death, immediate notice must be given to the insurer, and that affirmative proofs of loss must be furnished to it at its office within 90 days after the date of the loss. Upon the trial, defendant moved for a directed verdict in its behalf, and offered no evidence. The case was submitted to the jury and a verdict returned for the full amount of the policy.

Two main questions are involved: First, was the death due to injury effected through accidental means; and second, was the defendant given immediate notice of the death and furnished with affirmative proofs of loss within the time provided for in the policy.

The insuring clause of the policy insures "against loss resulting from bodily injuries, including death resulting therefrom, effected independently and exclusively of all other causes directly through accidental means." Part G, relating to coverage in event of death from septicemia, or blood poisoning, provides:

"Subject to its terms, limits and conditions, this policy covers the insured in the event of death * * * or disability from septicemia or blood poisoning due directly to injuries effected as hereinbefore provided and sustained while this policy is in force."

Among the "additional provisions" of the policy is clause 22, which is as follows:

"This policy shall not cover accident, injury, disability, death, or other loss caused or contributed to directly or indirectly wholly or partly, by bodily or mental infirmity, ptomaines, bacterial infections (except pyogenic infections which shall occur simultaneously with and through an accidental cut or wound effected as hereinbefore provided), or by any other kind of disease. * * *" The medical testimony was to the effect that a hair is imbedded in a follicle; that the plucking of a hair will leave a tiny orifice in the skin or mucous membrane which may provide a port of entry for pyogenic germs into the blood stream, or the lymph stream; that staphylococcus germs are usually present upon the skin; that infection from the plucking of a hair, while not wholly unknown, is very unusual; that any injury to the skin or mucous membrane may provide a port of entry for pyogenic germs; that it is difficult for the physician in a given case to determine the exact port of entry.

The policy covered death from bodily injuries effected directly through accidental means. Some effort is made to interpret the policy as covering death from all accidental injuries, however effected, in reliance upon the designation "Perfection Accident Policy" printed upon the outside and at the top of the contract, followed by the statement that it "provides indemnity for death * * * due to accidental injuries." It is sufficient to say that such designation is not part of the contract, that it is merely an indication of its general nature, and that the qualifying phrase, "as herein limited and provided," is a sufficient challenge to the holder that the terms of the policy rather than any general designation are to be looked to for the measure of protection provided.

There is substantial distinction between "accidental injuries" and injuries effected through "accidental means," or as it was put in a recent decision by this court Pope v. Prudential Insurance Co., 29 F.(2d) 185, between accidental result and the result of an accidental cause. Conceding to the beneficiary in the Pope Case the utmost breadth of definition for the rule of liability under policy provisions similar to those here considered, there was found to be no accidental cause to the death there involved. Stating the rule in its broadest aspect, it was in the Pope Case considered that there cannot be said to be an accidental cause of any injury when the insured or those acting with his consent did precisely what they intended to do and in the way which they intended, knowing that injury often did result and might be unavoidable, and where there was no slip or misstep in the performance, and where there was no ignorance of any material factor. Illustrative cases are sufficiently cited in a note to Judge Denison's opinion in that case.

For reasons presently to appear, we find it unnecessary to consider whether infection was a result which the insured might have known or might reasonably have anticipated would follow the voluntary plucking of a hair, nor whether his ignorance of the presence of pyogenic germs was such ignorance of a material factor as would destroy the normal and intended character of his act. Nor do we here consider the soundness or applicability of any holding by which the unexpectedness or unusualness of a given accidental result is made the criterion for determining whether or not an act which brought it about is an "accidental means." It is sufficient to note that in the Pope Case, the holdings of Ætna Co. v. Brand (C. C. A.) 265 F. 6, 13 A. L. R. 657 (the case of the misplaced artery), and Mutual Co. v. Dodge (C. C. A.) 11 F.(2d) 486, 59 A. L. R. 1290 (unknown hypersusceptibility to novocaine), were considered among decisions which carry the definition of "accidental means" to something of an extreme, yet might there be accepted without being applicable. We need go no further than that in relation to such phases of the rule of liability, for in the instant case it fairly appears from the record to a majority of this court that, whatever may have been the intended character of Massey's act, there was a slip or misstep whereby his intended act was as to the manner of its execution transformed into an unintended one. U. S. Mutual Acc. Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60.

Massey pulled a hair from the inside of his nose, presumably at the spot where the skin of the lip meets the mucous membrane of the nostril. Septicemia resulted, followed by death. The District Judge submitted the case to the jury, with instruction to find for plaintiff if Massey died from blood poisoning induced from his pulling a hair from his nose which caused a wound into which pyogenic germs entered at or about the time such wound was made. The jury so found. If Massey's act produced a wound by tearing or abrading the skin or membrane, certainly such wound was not intended, and it may be reasonably presumed that infection occurred simultaneously with and through such wound. Does the record sustain the instruction of the court and the finding of the jury? We find ourselves in this respect confronted with the identical question that was before the Supreme Court in the Barry Case, supra. Dr. Barry jumped from a platform after two companions had jumped before him. They alighted safely. Dr. Barry landed on his feet, but heavily with some shock. The result was a ruptured duodenum causing his death. The theory of recovery was that there was some mishap in the jump whereby the intended act was in the manner of its performance transformed into an unintended one. Dr. Barry jumped after two companions had alighted safely. Mr. Massey pulled a hair from his nose after millions of persons had pulled hairs from nose or head or eyebrows without injury. Dr. McElroy for plaintiff beneficiary testified that most always an injury is required to produce a port of entry (for pyogenic germs); it is scarcely possible for the germ to enter the skin without some injury to the skin. Dr. Klewer stated that it is possible for these organisms (pyogenic germs) to get into a wound while a man is shaving, or through a scratch abrasion of any kind. The rubbing of the skin or abrading it could cause a sufficient port of entry. It is a question whether these germs will enter without breaking down or abrading the skin, and there is a difference of opinion among reputable medical men on that point. Dr. Cullings testified that it is possible to cause sufficient abrasion of the mucous membrane to make a port of entry by rubbing the nose; and also possible to cause a sufficient abrasion by cleansing the nose with a towel or wash cloth. There was also testimony, of course, that the opening into the follicle, from which the hair was removed, might be a sufficient port of entry for germs, but that such cases were extremely rare. We think the instruction of the court and the finding of the jury thereon within the evidence, and on this phase of the case, were it not for conclusions reached on another point, the judgment would be affirmed.

The requirement for notice to be given immediately in the event of accidental death is by the policy qualified in the event that it is not reasonably possible to give such notice. In the light of the pleading setting up an excuse for failure to comply with the notice provision, the evidence introduced in support of such pleading, and the...