Miriam S. Griswold v. Metropolitan Life Insurance Co.

• Decision Date: 15 July 1935
• Parties: MIRIAM S. GRISWOLD v. METROPOLITAN LIFE INSURANCE COMPANY
• Court: Vermont Supreme Court

180 A. 649

107 Vt. 367

MIRIAM S. GRISWOLD v. METROPOLITAN LIFE INSURANCE COMPANY

Supreme Court of Vermont

July 15, 1935

February Term, 1935.

Insurance---Sufficiency of Evidence To Justify Jury in Finding That as Result of Accident Insured Received Visible Wound, and That Septic Infection Causing Death Was "of and through a Visible Wound"---Weight of Evidence as Not for Consideration on Defendant's Motion for Directed Verdict---"Accidental Means"---Construction of Uncertain Term in Insurance Policy---Sufficiency of Evidence To Show That Insured's Death Was Caused by "Accidental Means."

1. In ACTION OF CONTRACT on accident insurance policy by widow of insured as beneficiary under policy, where policy provided that it should not cover death caused wholly or partly by infection "excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means," and insured died of septic infection, starting at base of nose by stick of kindling wood which flew up as he was cutting it held that evidence was sufficient to justify jury in finding that there was an abrasion of skin permitting blood to escape, hence a visible wound caused by impact of stick.

2. In such action, held that evidence was such that thereunder jury could find that septic infection causing insured's death was "of and through a visible wound," thus bringing injury within terms of policy.

3. In such action, on exception to refusal of court to grant defendant's motion for directed verdict, weight of evidence was not for consideration, it being sufficient if there is evidence fairly and reasonably tending to support the plaintiff's claim, and effect of modifying evidence to be excluded.

4. Term "accidental means" as used in accident insurance policy is to be interpreted according to usage of average man, and is employed in its common significance of happening unexpectedly without intention or design.

5. Uncertainty in significance of term used in an insurance policy is to be resolved in favor of insured and against insurer.

6. Where injury was caused insured while he was chopping wood by stick flying up and striking him near base of nose, as a result of which septic infection ensued causing his death held that death was caused by "accidental means," within meaning of term as used in accident insurance policy though act of chopping wood was voluntary, since injury was plainly unforeseen, unintended, and not probable consequence of his act.

ACTION OF CONTRACT on accident insurance policy by widow of insured as beneficiary under the policy. Plea, general denial and several special pleas. Trial by jury at the June Term, 1934 Windsor County, Sherman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Marvelle C. Webber and Christopher A. Webber for the defendant.

Alban J. Parker for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

MOULTON

The plaintiff is the beneficiary under a policy of accident insurance, issued by the defendant, insuring her late husband, James H. Griswold, against "the results of bodily injuries sustained while this policy is in force and caused directly and independently of all other causes by violent and accidental means," and providing also that the policy should not cover death caused wholly or partly by infection "excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means." Verdict and judgment below were for the plaintiff, and the cause is before us on the defendant's exceptions.

At the close of the evidence, the defendant moved for a directed verdict, which was denied subject to exception. The several grounds for the motion may be epitomized by saying that it was alleged that there was no evidence tending to show that the death of the insured was caused from septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means.

That the insured died of septic infection is not questioned. The dispute concerns the nature and cause of the injury, and the cause of the subsequent infection and death. As to these matters the evidence, taken most favorably for the plaintiff, tended to show the following: On Friday, April 28 1933, the insured was chopping kindling wood at a chopping block some thirty to forty feet from the house. A witness, who observed him through a window, testified that, as he was chopping, a stick of wood flew up, and it "looked as though it hit him in the face." The insured immediately came into the house and asked for a clean cloth, which he took and held against the junction of his lip and nose, near the opening of his nostril, and when he took the cloth away there were spots of blood upon it. The plaintiff did not look at the insured's lip, because he would not let her do so, saying that it was nothing. But from this testimony the jury would be justified in finding that there was an abrasion of the skin which permitted the blood to escape, and hence a visible wound, caused by the impact of the stick.

On the following Tuesday the insured complained of pain at the base of his nose. Swelling appeared at the spot where he had held the cloth. A physician who was consulted on the Wednesday, found an abrasion, at the junction of the membranous tissue of the nose and lip, containing a drop or two of pus. The swelling rapidly increased and spread until his face became discolored and swollen beyond recognition. Pains developed in his side and back, along with very high temperature. He was taken to the hospital and nourishment administered through a tube, because he could not open his mouth. He died of acute septicaemia on Wednesday, May 10. The infection was the usual type that is introduced into the body only where there is a break in the skin, and, according to an expert, it was extremely probable that it had been introduced by and through an abrasion at the nose suffered on April 28. Upon this evidence it was permissible for the jury to find that the septic infection was "of and through a visible wound," as provided in the policy. It is true that there was evidence, on the part of the defendant, tending to show that the insured had had a boil in his nose some eight weeks before the accident, and that the infection might have been caused by this or some other means, but the weight of the evidence is not for consideration upon this question; it is enough if there is evidence fairly and reasonably tending to support the plaintiff's claim, and the effect of modifying evidence is to be excluded. Ste. Marie v. Wells, 93 Vt. 398, 399, 108 A. 270.

We come now to the question whether it can be said that the injury was caused by violent and accidental means. That it was violent seems beyond question, and is not disputed, but the defendant makes the point that, since the act of the insured in chopping the wood was voluntary and intentional, and nothing appeared to show that it was not performed exactly as intended, with no slip or mishap, the means were not accidental, although the result might be so described. This is the first time that this question has been raised before us, and a somewhat extended examination of the decisions in other jurisdictions will be profitable.

The leading case, to which practically all the authorities refer, is U.S. Mutual Accident Association v. Barry, 131 U.S. 100, 33 L.Ed. 60, 67, 9 S.Ct. 755, 762, wherein the rule is thus stated: "If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result affected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means." From this statement of the law two diverse and irreconcilable views have developed. It is said in Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56, 61: "There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death."

The former or strict view is concisely expressed in Kimball v. Massachusetts Accident Company 44 R.I. 264, 117 A. 228, 230, 24 A.L.R. 726, thus: "In determining that an injury occurred by accidental means,' it should appear that the cause or means governed the result and not the result the cause; and that, however unexpected the result might be, no recovery could be allowed under such a provision unless there was something unexpected in the cause or means which produced the result * * * when a man is injured while doing merely what he intends to do, he is not injured by accidental means, unless the course of his action has been interrupted or deflected by some unforeseen or unintended happening." Accidental means and accidental cause are synonymous expressions. Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267...