Moutzoukos v. Mutual Ben. Health & Accident Ass'n

• Decision Date: 04 April 1927
• Docket Number: 4492
• Citation: 254 P. 1005,69 Utah 309
• Parties: MOUTZOUKOS v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N
• Court: Utah Supreme Court

254 P. 1005

69 Utah 309

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

No. 4492

Supreme Court of Utah

April 4, 1927

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Tom Moutzoukos against the Mutual Benefit Health &amp Accident Association. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED.

H. L Mulliner, of Salt Lake City, for appellant.

D. B Hempstead, of Salt Lake City, for respondent.

THURMAN, C. J. CHERRY, STRAUP, and HANSEN, JJ., and CHRISTENSEN, District Judge, concur. FRICK, J., did not participate.

OPINION

THURMAN, C. J.

This is an action by the plaintiff to recover judgment upon an accident insurance policy issued by the defendant for injuries alleged to have been sustained by the plaintiff on June 30, 1925. The complaint alleges that the policy was issued to him June 15, 1925, upon payment to the defendant of the sum of $ 20, and that the policy so issued indemnified him at the rate of $ 80 per month until October 1, 1925, against total loss of time resulting from bodily injuries sustained through purely accidental means; that thereafter, on September 9, 1925, plaintiff paid to defendant the further sum of $ 15 as payment in advance to carry said policy to December 31, 1925, making a total sum of $ 35 paid for said policy by plaintiff to defendant. It is then alleged that, after the issuance of said policy, and while it was in force, to wit, on the 30th day of June, 1925, plaintiff suffered bodily injuries, sustained through purely accidental means, which wholly and continuously disabled the plaintiff, and prevented him from performing any and every duty pertaining to his occupation, and the plaintiff thereby suffered total loss of time from said June 30, 1925, to October 8th of the same year--a period of 3 months and 8 days; that said injuries were caused by plaintiff rupturing himself while attempting to unload a mining timber too heavy for one man to handle; that, by reason of said injury, plaintiff was, for a period of 3 months and 8 days, disabled and prevented from performing any and every duty pertaining to his occupation, which was loading and unloading timbers inside and outside the mine, which occupation of plaintiff is stated in the policy.

The complaint further alleges that the policy also provided for reimbursement for hospital expenses, if plaintiff was necessarily confined therein, in the sum of not exceeding $ 40 per month for a period of not exceeding three months, and alleges that, on the 19th day of July, 1925, he was sent to the hospital by his attending physician, and on July 20th he was operated upon for rupture, and was necessarily confined in said hospital, solely on account of said injuries, from July 19, 1925, until August 7th of the same year; that by reason thereof he is entitled to compensation for said time in the sum of $ 26.66.

It is further alleged that plaintiff's physical condition necessitated total disability, and during the time he was confined within doors he required regular visits by a legally qualified physician; that immediately after the happening of said accident plaintiff notified the defendant thereof, and thereafter within the time provided by the policy, he filed with, and delivered to, defendant written notice of the injury, and claim and proof of loss, and requested indemnity for accident disability and illness beginning June 30, 1925; that plaintiff has at all times faithfully kept and performed every condition of said policy by him to be kept and performed, and has been guilty of no default; that more than 60 days have elapsed since plaintiff filed with and delivered to defendant his proof of loss and claim in writing upon a form furnished him by defendant; that plaintiff, on numerous occasions since said loss was suffered and said proof of loss and claim in writing were filed and delivered, made demand upon defendant for the performance of the conditions of said policy to be performed by defendant, and has demanded of defendant that it pay plaintiff the sum of $ 261.32, being the amount due plaintiff at the rate of $ 80 per month for 3 months and 8 days, and the further sum of $ 26.66 for additional compensation while plaintiff was confined in the hospital; that defendant refused, and still refuses, to pay said amounts or any amounts whatever to the plaintiff; and that the said amounts are now due and owing from the defendant to the plaintiff. Plaintiff prays judgment for the sums above stated. We have omitted allegations in the complaint relating to illness from disease, for the reason that such issue was withheld from the jury.

The defendant demurred to the complaint. The demurrer was overruled.

Answering the complaint, defendant admits the issuance of the policy and payment of $ 35 premium. It also admits receipt of notice, proof of, and claim for, indemnity, more than 60 days prior to the commencement of the action. Defendant denies specifically each and every allegation of the complaint tending to fix liability upon the defendant, and, as a further answer and defense, alleges that plaintiff was afflicted with a double hernia long prior to the alleged accident of which he complains, and at the time thereof, and that in his application for the policy, he knowingly made false answers to questions propounded, to the effect that he had never had hernia, and had not received medical advice or treatment for any local or constitutional disease within the past 5 years. Defendant alleges that, if plaintiff has suffered loss of time, it has been due to hernia which he had at the time of making application for said policy. Defendant prays that the action be dismissed, at plaintiff's cost.

The testimony of plaintiff tended to show that, while lifting a heavy mining timber in the course of his employment for the Utah Apex Mining Company on June 30, 1925, he sustained a rupture, which necessitated an operation on July 19, 1925, and confinement in the hospital under medical treatment as alleged in his complaint. There was evidence on the part of the defendant to the effect that no such injury occurred. The case was tried to a jury, verdict was rendered for plaintiff, and judgment entered. Defendant appeals.

The policy in question insured respondent "against loss of limb, sight, or time, resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means." Appellant makes the contention that, where a man simply injures himself in the regular course of his work by voluntarily lifting, especially where he is lifting a timber of the same character as he is handling one after the other, without anything unforeseen happening to cause the injury, it does not come within the terms of the policy. In other words, the contention is that it is not an injury sustained "through purely accidental means."

This question has heretofore been before the court in one form or another, and has been decided adversely to appellant's contention. Two of the cases we have in mind were cases under the Utah Industrial Act (Comp. Laws 1917, §§ 3061-3165) Tintic Milling Co. v. Ind. Comm., 60 Utah 261, 207 P. 1114; Cherdron Const. Co. v. Simpkins, 61 Utah 493, 214 P. 593. In each of these cases the court had occasion to carefully consider what constituted "accidental injury," as the term is used in the Industrial Act. The conclusion arrived at was that, to constitute an accidental injury it must happen suddenly and unexpectedly, at a definite time and place. It is said in appellant's brief that "there is a clear line of demarcation between cases arising on an insurance policy of this kind and those arising under workmen's compensation acts." We do not so understand the law, as far as the definition of an accidental injury is concerned. But the court has likewise had under review cases arising under accident policies containing similar provisions to that above quoted from the policy in question here. Richards v. Standard Acc. Ins. Co., 58 Utah 622, 200 P. 1017, 17 A. L. R. 1183. In that case the insured was killed by sunstroke while crossing a desert. The insurance company made a similar contention to that made by the appellant here. It appeared that there were two lines of authority upon the question, one holding as contended by appellant in the case at bar, to the effect that there was a difference between an "accidental death" and a death "by accidental means," and the other announcing a more liberal construction in favor of the insured. In other words, it was held, in effect, that any sudden, unexpected death, not resulting from disease, is a death by accidental means within the meaning of the policy, and that sunstroke was not a disease.

In Carter v. Standard Acc. Co., 65 Utah 465 238 P. 259, 41 A. L. R. 1495, there is a more extended review of the question and a vast number of cases collated from both lines of authority. The Carter Case was also an accident insurance case. The defendant in that case affirmatively alleged that Carter, the insured, committed suicide by intentionally taking an overdose of laudanum. There was evidence tending to show that Carter was in the habit of taking laudanum to induce sleep; that he new just how much to take, and, therefore, if he took a lethal dose, it must have been with suicidal intent. The plaintiff contended that, if his death was caused by an overdose of laudanum, it was not intended, and therefore it was a death by accidental means. The question of what constitutes a death by accidental means, within the meaning of the policy, was thus raised, and the authorities pro and con were presented to the court. In deciding the case this court adopted, as it did in the Richards Case, the more liberal construction in...