Mitchell v. Metro. Life Ins. Co., (No. 9289)

• Decision Date: 17 February 1942
• Docket Number: (No. 9289)
• Citation: 124 W.Va. 20
• Court: West Virginia Supreme Court
• Parties: Hazel J. Mitchell v. Metropolitan Life InsuranceCompany

124 W.Va. 20

Hazel J. Mitchell

v.Metropolitan Life Insurance Company

(No. 9289)

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1942.

Decided February 17, 1942.

1. Insurance

In the interpretation of the double indemnity provision of a life insurance policy, the term "disease" does not include heat exhaustion.

2. Insurance

In an action by the beneficiary in a life insurance policy, to recover double indemnity benefits for the death of insured as the result of bodily injuries sustained through external, viollent and accidental means, it was shown that insured died from heat exhaustion suffered while repairing a high temperature contact conversion machine in a chemical plant, around which machine the temperature was approximately one hundred degrees, and where sudden changes frequently occurred as to heat, gas and fumes, which work was in the course of his regular duties and for which he had been employed eight years without ill effects; a question was presented for jury determination as to the happening of an unforeseen, unexpected or unusual event resulting in death of insured.

3. Appeal and Error

The admission of incompetent evidence on a material issue, over objection, is cause for reversal unless it is apparent that the objector was not prejudiced thereby.

Error to Circuit Court, Kanawha County.

Action of debt by Hazel J. Mitchell against the Metropolitan Life Insurance Company to recover upon the double indemnity provision of a life insurance policy issued to plaintiff's husband, in which plaintiff is the named beneficiary. To review a judgment in favor of plaintiff, defendant brings error.

Reversed and remanded. Fox, President, dissenting in part.

Brown, Jackson & Knight, for plaintiff in error. Kay, Casto & Amos, for defendant in error.

Lovins, Judge:

Hazel J. Mitchell brought an action of debt in the Court of Common Pleas of Kanawha County against the defendant Insurance Company, based upon the double indemnity provision of a life insurance policy issued to her husband, Jeter C. Mitchell, and in which she is the named beneficiary. The declaration alleged that Mitchell's life was insured against accidental death by the terms of the policy and that he was accidently killed on August 8, 1940, while in the employ of the E. I. du Pont de Nemours and Company. The defendant company has paid to the plaintiff the amount due on the face of the policy, but denies liability for double indemnity. The policy provides for the payment of double indemnity "upon receipt * * * of due proof of the death of the insured, as the result, directly or independently of all other causes, of bodily injuries sustained through external, violent and accidental means * * *." The defense interposed by pleas filed was that death did not result from bodily injuries sustained through external, violent and accidental means, and that death was caused wholly or partially by disease. Judgment was entered by the trial court upon a jury verdict for the full amount sued for, and this writ of error and supersedeas is prosecuted to the action of the Circuit Court of Kanawha County in affirming that judgment as plainly right.

The deceased was employed as a catalyst mechanic by the du Pont Company at its plant at Belle, West Virginia. (A catalyst machine is described in the record as a "contact converter" or a high pressure vessel where through combinations of pressure and temperature a chemical reaction is made.) His duties were to maintain a chemical high pressure on high temperature chemical vessels, service them and replace the catalyst and take care of all the repair work in that part of the plant where synthesis was done. The foreman in charge of decedent's work testified that such machines occasionally gave off gases and fumes and that conditions thereabout that exist at one period of the day may not be similar a few minutes afterward.

On the morning of August 8, 1940, Mitchell reported to his immediate superior, Gilly Sovilla, at eight o'clock and was assigned to repair a gasket seat that was corroded and leaking at the top of a vessel about three stories high in the contact conversion area. Fifteen minutes later, Sovilla went to the place where the repairs were to be made but Mitchell and his helper, Kermit Hill, were not there, having left their tools and gone to the machine shop for materials with which to do the work. Finding them at the shop, Sovilla said he warned Mitchell of "the condition that was up there, which he was pretty familiar with." Sovilla describes this "condition" as "the heat the heat and gas and the condition in that area," and further, "* * * the condition is always unusual because there is sudden changes take place in that area". When Sovilla returned to the scene of the repairs at about 8:45 Hill told him that Mitchell was ill and had gone to the plant hospital, whereupon, because of a plant rule prohibiting an employee from working by himself in that area (because, Sovilla says, of the possibility of a man being overcome by gas or heat), Sovilla told Hill to leave the area.

Sovilla testified that the temperature around such machines is over one hundred degrees in the summer sometimes hotter than others due to the way the equipment operates, and that there is always work going on around the machines. There were four of the vessels, or machines in the building, and the one on which Mitchell worked was not operating and "planked off" at the time, although the one adjoining was operating and threw off some heat.

Hill testified that he had never worked with Mitchell prior to August 8, 1938, and on that occasion, as Mitchell's apprentice or helper was at his side from the beginning of the work until he went to the plant hospital. The top of the vessel, which was open, is cylindrical, extends through the floor or grillwork around it near the top, about three feet and is about four feet in diameter. Hill says that after they returned from the machine shop, Mitchell began the repair work, with one knee on the floor, bending over the vessel, his head over the open top, and using hammer and chisel. About fifteen or twenty minutes later, Mitchell said he was getting sick, and sat down for about five minutes. He then made his way to the plant hospital without assistance from Hill. Hill stated that he was not bothered by the heat, however, he says that he merely stood beside the vessel and watched Mitchell work, in contrast to the latter's stooped position over the open top thereof. Hill further stated that it is hotter at that particular point than any place else in the building due to the combined factors of the proximity of three other machines of the same type, which are operated with steam, and the top of the vessel being up against the roof, three stories from the main floor.

When he reached the plant hospital, Mitchell complained, to the physician in charge, of dizziness and weakness and of pains, not severe, extending through the chest down into the arms. His blood pressure and pulse were normal, his temperature subnormal. When fluids by the mouth, the proper treatment for heat exhaustion as stated by the attending physician, were given, Mitchell became nauseated and vomited; he was then given "a stimulant" and hot water bottles and blankets were applied.

One of the plant physicians then took Mitchell to a hospital in Charleston, where he was admitted at 10:40 a. m. He was given one thousand cc. of normal saline solution and expired one hour later. The hospital's "abstract of clinical history" shows that his complaint upon admission was "generalized aching; bilateral upper chest pain."

An autopsy was performed the same day, the report of which states that death from disease is ruled out by the detailed gross and microscopic examination. Edema of the brain was found, which, according to medical evidence in the record, may be caused by excessive heat. The report concludes that the positive findings of the autopsy are occasionally encountered in heat prostration, but no characteristic findings appear upon which to base a diagnosis of death from heat prostration, without knowledge of the clinical history.

The certificate of the death of Mitchell in the State Division of Vital Statistics, signed by the physician who accompanied him to the Charleston hospital, lists "heat exhaustion" as the principal cause of death, and in answer to the question therein, "Was disease or injury in any way related to occupation of deceased", it is there stated: "Yes working in temp, of 95 degrees."

The record shows that Mitchell had worked at the Belle plant about eight years, most of the time around the catalyst machines. Such work, according to Sovilla, was intermittent, sometimes being for two or three days straight, followed by a lapse of two or three weeks, then possibly a resumption thereof for a few hours or a full day; he further testified that Mitchell was required to report to him for work every day and that he knew of no ill effects suffered by Mitchell from his work prior to the fatal occurrence. There was no evidence of any other fatality resulting from work around the machines.

Defendant contends that heat exhaustion (sunstroke or heatstroke) is a disease, not an injury, and therefore not covered by the terms of the policy in question, which exclude self-destruction, disease and bodily or mental infirmity from the hazards covered by the double indemnity provision. This is the technical or scientific view of the meaning of the term, as indicated by the authorities cited in counsel's brief; Encyclopedia Britannica, Encyclopedia Americana, The World Book and Webster's New International Dictionary. It is argued that the average person in buying a policy like that under consideration has in mind something violent and overpowering something like an automobile accident, a train wreck or a gunshot wound and that if the question arose in the negotiations for the sale of the policy, the parties would probably consult a...