McMahan v. Mutual Ben. Health & Acc. Ass'n

• Decision Date: 19 June 1947
• Docket Number: 30075.
• Citation: McMahan v. Mutual Ben. Health & Acc. Ass'n, 182 P.2d 4, 28 Wn.2d 202 (Wash. 1947)
• Court: Washington Supreme Court
• Parties: McMAHAN v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

182 P.2d 4

28 Wn.2d 202

McMAHAN v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

No. 30075.

Supreme Court of Washington, En Banc.

June 19, 1947

Action by Clara McMahan, against Mutual Benefit Health & Accident Association, to recover upon an accident policy issued by defendant to plaintiff's husband.From a judgment of dismissal after a demurrer to second amended complaint had been sustained and plaintiff declined to plead further, the plaintiff appeals.

Reversed with directions.

JEFFERS J., dissenting.

Appeal from Superior Court, Lewis County; John E. Murray, Judge.

C. D Cunningham, of Centralia, and Hull & Armstrong, of Chehalis for appellant.

H. E Grimm, of Centralia, for respondent.

STEINERT Justice.

This was an action brought by the plaintiff to recover upon a policy of accident insurance issued by the defendant.A demurrer to the second amended complaint, interposed by the defendant, was sustained by the trial court.Plaintiff having declined to plead further and having elected to stand on her complaint as twice amended, the court entered a judgment of dismissal, from which the plaintiff appealed.

Appellant, Clara McMahan, is the widow of Clarence L. McMahan, who died March 10, 1945.

On December 7, 1935, respondent, Mutual Benefit Health & Accident Association, issued to Clarence L. McMahan its policy designated 'Special Farmers and Farm Hands Policy' insuring him '* * * against loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained during any term of this Policy, through purely Accidental Means (Suicide, sane or insane, is not covered), and against loss of time beginning while this Policy is in force.'

The policy provided for a death benefit of $2,000, with an increase of $200 for each year after the payment of the first annual premium until the benefits should amount to the total sum of $4,000.The insured paid all premiums due on the policy up to and including the time of his death, at which time the benefits provided by the contract of insurance amounted to $3800.Appellant is the beneficiary under the policy.

The allegations material to this controversy are contained in paragraph three of the second amended complaint, reading as follows: 'That on or about March 9, 1945, the said Clarence L. McMahan submitted to an operation necessary for, and for the purpose of, the alleviation and correction, or removal, of herniated discs at the fourth and fifth interspaces of the lumbar vertebrae, said condition being occasioned by and resulting from a previous accidental injury, to-wit: a fall occurring in 1917.Shortly thereafter, by mishap and misadventure as an unexpected, unusual and unforeseen result of the operation aforesaid, an embolism or blood clot entered the blood stream of the decedent, Clarence L. McMahan, by reason of which he suffered a pulmonary thrombosis and as a result thereof, and independent of all other causes, and while said policy of insurance was in full force and effect, he died on or about March 10, 1945.That under the terms of said policy the death of said Clarence L. McMahan was occasioned directly by purely accidental means and independent of all other causes.'

The allegations upon which appellant particularly relies is the language beginning with the words 'Shortly thereafter' and continuing to the end of the paragraph.

It may be explained that an 'embolism,' as defined by Roscoe M. Gray, M.D., in his work on Attorneys' Text Book of Medicine (2nd ed.), pp. 463, 480, is that process by which some floating foreign mass, called an embolus, is carried through the blood stream until it reaches and obstructs some artery too small to permit its further passage.According to Goldstein and Shabat, Medical Trial Technique, p. 346, a pulmonary thrombosis is the condition created when a clot, or embolus, in a vein breaks off and finally lodges in the pulmonary artery, forming a clot called a thrombus.

So far as the record Before us shows, respondent interposed no motion to make the second amended complaint more definite and certain, but, instead, filed a demurrer thereto based on three grounds, only one of which is pertinent here, namely, that the second amended complaint did not state facts sufficient to constitute a cause of action.Under this state of the record the general question Before us is whether that complaint does state a cause of action on the policy.

In passing on the legal sufficiency of a pleading, we must proceed according to the admonition of Rem.Rev.Stat. § 285, which provides that in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.Correlatively, Rem.Rev.Stat. § 286, provides that when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain, or may dismiss 'the same.'

In conformity with the provisions of the first of these statutes, this court has from early days consistently held that, in determining whether or not a complaint is sufficient as against a demurrer, the pleading will be liberally, not strictly, construed and that 'even inferences from averments amounting to mere conclusions of law' will be construed in favor of the pleader.Ankeny v. Pomeroy Grain Growers, Inc.,170 Wash. 1, 15 P.2d 264, 265;Harris v. Halverson,23 Wash. 779, 63 P. 549;Lidral Construction Co., Inc. v. Parker,9 Wash.2d 128, 113 P.2d 1022;Cannon v. Miller,22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530.

Further, having in mind the provisions of the second of these statutes, we have likewise as consistently held that where substantial facts constituting a cause of action are stated in the complaint or can reasonably be inferred from the matters set forth therein, although the allegations of such facts are in effect conclusions of law, or are otherwise imperfect, incomplete, or defective, the insufficiency pertaining to the form rather than to the substance of the pleading, the proper mode of correction is not by demurrer not by excluding evidence at the trial, but by motion Before trial to make the averments more definite and certain by amendment.Harris v. Halverson, supra;Grout v. Tacoma Eastern R. Co.,33 Wash. 524, 74 P. 665;Loveday v. Parker,50 Wash. 260, 97 P. 62;Cannon v. Miller, supra.

Appellant makes no contention in this case that the original injury, sustained by the insured in 1917 by reason of a fall, is to be considered for the purpose of establishing liability under the policy.Manifestly, she could not well make such contention because, by its express terms, the policy limits respondent's liability to injuries sustained during the term thereof, and the policy in this instance was not issued until December 7, 1935, approximately 18 years after sufferance of the original injury.No doubt that matter was set forth in appellant's pleading merely for the purpose of showing the necessity or reason for the operation that was performed in 1945, after the issuance of the policy.Wholly apart from that circumstance, appellant's contention is that the following language of her second amended complaint, included in the quotation above and to that extent here repeated for easier reference, sufficiently states a cause of action: 'Shortly thereafter [after the operation on March 9, 1945], by mishap and misadventure as an unexpected, unusual and unforeseen result of the operation aforesaid, and embolism or blood clot entered the blood stream of the decedent, Clarence L. McMahan, by reason of which he suffered a pulmonary thrombosis and as a result thereof, and independent of all other causes, and while said policy of insurance was in full force and effect, he died on or about March 10, 1945.That under the terms of said policy the death of said Clarence L. McMahan was occasioned directly by purely accidental means and independent of all other causes.'

Underlying the more general question stated above is the crucial question whether the insured came to his death through 'purely accidental means,' as provided in the policy, that is to say, whether the entry of the blood clot into the blood stream of the insured, in the manner and under the circumstances alleged in the second amended complaint, by reason of which entry the insured suffered a pulmonary thrombosis resulting in death, constituted a bodily injury through 'purely accidental means,' within the meaning of the policy.

With the view and the hope of determining precisely the factual content of the complaint and what was intended by its allegations, we have read, and many times re-read, the pleading, and we must confess that, in the light of the terminology used by the various courts in countless decisions upon the subject, the language of the present pleading is somewhat baffling.We must admit, however, that appellant's counsel, in drawing the pleading, may have been equally baffled by those same judicial expressions, including our own.

However, after careful consideration, and bearing in mind the rules stated above, we have come to the conclusion that the complaint purports to allege, and is susceptible of the interpretation, that the embolism, or entry of the blood clot into the blood stream of the insured, occurring by mishap or misadventure, was an unexpected, unusual and unforeseen agency or happening, independent of all other causes of injury and death, and was occasioned by purely accidental means.

In this connection, it may be stated that, while apparently the second amended complaint was preceded by a first amended complaint and an original complaint, neither of these...