McCallum v. Mutual Life Insurance Co. of New York

• Decision Date: 31 July 1959
• Docket Number: Civ. A. No. 2647.
• Citation: 175 F. Supp. 3
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Georgie W. McCALLUM, Plaintiff, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant.

175 F. Supp. 3

Georgie W. McCALLUM, Plaintiff, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant.

Civ. A. No. 2647.

United States District Court E. D. Virginia, Norfolk Division.

July 31, 1959.

Goldblatt & Lipkin, Paul M. Lipkin, Norfolk, Va., for plaintiff.

Willcox, Cooke, Savage & Lawrence, Wm. P. Dickson, Jr., Norfolk, Va., Christian, Barton, Parker & Boyd, A. C. Epps, Richmond, Va., for defendant.

WALTER E. HOFFMAN, District Judge.

Plaintiff, the beneficiary under three life insurance policies issued by defendant insuring the life of Claude S. McCallum, has instituted this action to recover under the double indemnity provisions of said contracts. The defendant has paid the principal death benefits, but declines to pay the double indemnity. Two of the contracts contain identical language; the third contract is worded differently.¹

Motions for summary judgment have been filed by both parties. It is only necessary to discuss the defendant's motion and, for this purpose, the evidence introduced in support of, and in opposition to, the motion must be considered in the light most favorable to the plaintiff.

The insured was found dead on the early morning of December 7, 1956. Apparently he had arisen and entered the hall of his home for the purpose of adjusting the thermostat when he collapsed and, shortly thereafter, was found dead by the maid. An autopsy revealed an enlarged heart, and mucous and other foreign material in the trachea, bronchioles and bronchi. The diagnosis was acute aspiration of gastric contents to trachea, bronchi and bronchials; acute congestion of lungs; marked mucous and tracheal bronchitis; severe fatty infiltration of liver; hypertrophy of left heart; moderate coronary sclerosis; adiposity of heart; moderate arteriosclerosis of aorta; chronic gastritis; blood alcohol, negative. The summary of the autopsy was as follows:

"The autopsy revealed as cause of death aspiration of gastric contents into the trachea. Gastric contents were present in the mouth and nose. The demised was apparently an alcoholic with a fatty liver, though at the time of death no alcohol was found in the blood and incidental finding was hypertensive cardiovascular renal disease."

While it is undoubtedly true that the insured periodically drank to such an extent that he would become sick, and thereafter suffered "drying out" periods, the evidence discloses that he also went for long stages without indulging in any alcohol. For the purpose of the motion it must be assumed that the insured had consumed no alcoholic beverage for at least ten days prior to his death. The day prior to his death a physician had prescribed thorazine for the insured's upset stomach and diarrhea. He ate lunch and dinner with his family on December 6, at which time he was apparently feeling well. There is no indication that his sleep was disturbed that night.

Defendant contends that the death was not "as a direct result of bodily injury effected solely through external, violent and accidental means" and that the insured did not die "of accidental death independently and exclusively of all other causes". While the evidence points strongly to the fact that the insured was suffering from an existing disease or infirmity which, assuming arguendo an accident, jointly resulted in the death, this may present a jury question to ascertain whether the disease or infirmity had any causal connection with the death. Under the law in Virginia as stated in Crowder v. General Accident Fire & Life Insurance Corporation, 180 Va. 117, 21 S.E.2d 772, 774, it is said:

"* * * if the insured is afflicted with a disease or infirmity at the time an alleged accident occurs, which disease or infirmity proximately causes or substantially contributes to the death or injury resulting, such death or injury is not within the coverage of the policy which insures against death or bodily injury independently of all other causes by accident or accidental means."

Doubtful though it may be, the plaintiff is entitled to have the jury determine whether the infirmities were remote causes bearing no causal connection with the death.

The case, as presented by the motion, turns on the interpretation of the words "external means". Certainly if this matter is ultimately submitted to the jury, it would be incumbent upon the court to define this term. The defendant urges that the cause of death was the failure of the glottis² to function properly with the result that vomit was taken into the windpipe and bronchi. Plaintiff, on the other hand, contends that the cause or means of death was aspiration of vomitus, or suffocation on vomited matter. Undeniably, death caused by choking on food which, in an attempt to swallow it, accidentally passes into the windpipe is covered under a contract which provides for payment by reason of "external, violent and accidental means".

The ultimate question is the distinction, if any, between choking on food as it is being ingested, and choking on food reduced to matter as it is regurgitated from the stomach.

The word "external" is defined as "relating to the surface of the body" as applied in medical terms. Plaintiff may find some comfort in the anatomical definition which refers to "originating beyond the limits of an organ or limb". This Court does not believe that the anatomical definition can be accepted in the construction of the word "external" as here expressed. As was said in Landress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 462, 78 L.Ed. 934, where the insured suffered a fatal sunstroke while playing golf:

"The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself. Petitioner's pleadings do not suggest that there was anything in the sun's rays, the weather, or other circumstances external to the insured's own body and

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