Mut. Ben. Health & Accident Ass'n v. Ryder

• Citation: 185 S.E. 894
• Court: Supreme Court of Virginia
• Decision Date: 11 June 1936
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N. v. RYDER.

185 S.E. 894

MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

v.RYDER.

Supreme Court of Appeals of Virginia.

June 11, 1936.

Error to Circuit Court of City of Portsmouth.

Action by Nannie L. Ryder against the Mutual Benefit Health & Accident Association. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before HOLT, HUDGINS, GREGORY, CHINN, and EGGLESTON, JJ.

James E. Heath and Smith R. Brittingham, Jr., both of Norfolk, for plaintiff in error.

A. A. Bangel and Martin Abraham, both of Portsmouth, for defendant in error.

HOLT, Justice.

In this case is in issue the coverage of a health and accident insurance policy.

On May 21, 1934, the Mutual Benefit Health & Accident Association issued to Jessie Ryder its policy of insurance, naming therein as beneficiary his wife, Nannie L. Ryder. On September 29, 1934, he was assaulted by one Barnes. In defending himself, the index finger of his right hand was lacerated. This wound was promptly bathed in an antiseptic solution, but did not respond to domestic treatment, and on October 10th a physician, Dr. Rawls, was called in. He found considerable pus and a great deal of inflammation in this finger and operated upon it. He continued treatment until November 18th, performing two other operations. They gave no relief, and Dr. Babbitt was called in. He first amputated the finger and then the arm, but Ryder grew steadily worse and died on December 15, 1934. Dr. Babbitt said that death was due to local infection, streptococci, which entered the body through the open wound on the patient's finger. As a layman might express it, he died from blood poisoning.

This policy in part reads:

"Ten Year Annual Increasing Policy

"This Policy Provides Benefits for Loss of Life, Limb, Sight or Time by Accidental Means, or Loss of Time by Sickness as Herein Provided

"Mutual Benefit Health and Accident Association

Omaha

(Herein called Association)

Does hereby insure

                ---------------------------------------------------------------
                |Monthly Benefits..      |$ 50.00|Death Benefit        |$1.250|
                |------------------------|-------|---------------------|------|
                |Maximum Monthly Benefits|$100.00|Maximum Death Benefit|$2,500|
                ---------------------------------------------------------------
                

"Sample Copy of the Most Liberal Policy Ever Issued

"Insuring Clause Jessie Ryder (Herein called the Insured) of City of Portsmouth, State of Virginia, 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 and resulting from disease contracted during any term of this Policy, respectively, subject, however, to all the provisions and limitations hereinafter contained.

"Accident Indemnities

"Specific Losses

"Part A.

"If the Insured shall sustain bodily injuries as described in the Insuring Clause, which injuries shall, independently and exclusively of disease and all other causes, continuously and wholly disable the Insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay:

                ---------------------------------------------
                |For Loss of Life                 |$1,250.00|
                |---------------------------------|---------|
                |For Loss of Both Eyes            |$1,250.00|
                |---------------------------------|---------|
                |For Loss of Both Hands           |$1,250.00|
                |---------------------------------|---------|
                |For Loss of Both Feet            |$1,250.00|
                |---------------------------------|---------|
                |For Loss of One Hand and One Foot|$1,250.00|
                |---------------------------------|---------|
                |For Loss of Either Hand          |350.00   |
                |---------------------------------|---------|
                |For Loss of Either Foot          |350.00   |
                |---------------------------------|---------|
                |For Loss of Either Eye           |250.00"  |
                ---------------------------------------------
                

In "Part B" provision is made for "double specific losses, " and in it this appears: "Only one of the amounts named in Parts A and B will be paid for injuries resulting from one accident, and shall be in lieu of all other indemnity."

Has plaintiff brought herself within that provision of the policy under which for a named specific loss she is to be paid a certain named sum?

It is scarcely necessary that we restate these elementary rules, although they should be continually remembered. Where there is doubt as to construction of policies, the insured is favored, but, like other contracts, they are to be construed as written.

One who assaults another, or voluntarily enters into an affray and is hurt, has not suffered an accident. But, if assaulted, he may defend himself. Any injury which he sustains in so doing is accidental. Travelers' Ins. Co. v. Dupree, 17 Ala.App. 131, 82 So. 579; Lovelace v. Travelers' Prot. Ass'n, 126 Mo. 104, 28 S.W. 877, 30 L.R.A. 209, 47 Am.St.Rep. 638; Accident Ins. Co. v. Bennett, 90 Tenn. 256, 16 S.W. 723, 25 Am.St.Rep. 685; 1 C. J. p. 431.

Ryder did not die of a cut finger, but from the poison of germs which entered his system through that open gateway.

"Blood Poisoning resulting from an accidental wound or abrasion is within the protection of an accident policy; but it is otherwise where the wound or abrasion is not an accidental injury within the meaning of the policy." 1 C.J. p. 430.

In Order of United Commercial Travelers v. Edwards (C.C.A.) 51 F.(2d) 187, 190, it was said: "If death is caused by an infection which is introduced through an open and visible wound, there is liability, " although that case was reversed for reasons which do not touch this principle.

In Business Men's Acc. Ass'n v. Schiefelbusch (CCA.) 262 F. 354, 356, we are told that the plaintiff was baldheaded and perspired freely in hot weather. He rubbed his head with a soiled towel from which septic infection followed. The streptococcus germ was present there as it is present here. The judgment of the District Court was affirmed. Carland, Circuit Judge, said: "We are therefore of the opinion that the death of deceased was caused by accidental means."

Nax v. Travelers' Ins. Co. (C.C.) 130 F. 985, is a case in which the claimant cut himself in trimming a corn. Blood poisoning followed and he died. It was held to be an accidental injury. "After full consideration, we are of opinion the court would have erred in taking this case from the jury. That the injury in question was an accidental, external, and violent injury accords not only with our own views, but with well-considered cases, of which it suffices to cite Western Commercial Travelers' Ass'n v. Smith, 85 F. [401], 405, 29 C.C.A. 223, 40 L.R.A. 653." The Nax Case was reversed ([C.C.A.] 142 F. 653), but for want of timely notice.

French v. Fidelity & Casualty Co., 135 Wis. 259, 115 N.W. 869, 874, 17 L.R.A. (N.S.) 1011, is a leading case. French, a passenger conductor, struck his leg on an iron safe, causing an abrasion of the skin. Septic poison set in and he died therefrom. The court said; "The contention is that the accidental injury of itself would not have resulted fatally, but that death was due to an independent intervening cause, namely, the germs which entered the system through the wound. It must be apparent, however, that but for the accidental injury there would have been no cause for infection; that, but for the abrasion, the disease germs could not have entered and produced the fatal result. The wound produced by the accident was therefore the proximate and sole cause of death."

A like conclusion on almost the same state of facts was reached in Cary v. Preferred Accident Ins. Co., 127 Wis. 67, 106 N.W. 1055, 5 L.R.A.(N.S.) 926, 115 Am.St.Rep. 997, 7 Ann.Cas. 484. See, also, note, 5 Ann.Cas. 87; Ballagh v. Interstate Business Men's Accident Association, 176 Iowa, 110, 155 N.W. 241, 157 N.W. 726, L.R.A.1917A, 1050; Ocean Accident & Guarantee Corp., Ltd., v. Glover, 165 Va. --, 182 S.E. 221.

This wound accidentally suffered and afterwards infected, and from which death followed, brings the plaintiff within the provision of "Part A" of her policy. Infection suffered was not the proximate cause of death, but was a link in the chain of causation.

Payment for this specific loss in the language of the policy "shall be in lieu of all other indemnity" which would appear to end this case, but it is contended that this is not so because of these subsequent policy provisions:

"Illness Indemnities

"Confining Illness Benefits for Life

"Part K.

"The Association will pay, for one day or more, at the rate of Fifty ($50.00) Dollars per month for disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy, and which confines the Insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.

"Non-Confining Illness Twenty-Five Dollars Per Month

"Part L.

"The Association will pay, for one day or more, at the rate of Twenty-five ($25.00) Dollars per month, but not exceeding three months, for disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy, and which does not confine the Insured continuously within doors but requires regular medical attention; provided said disease necessitates total disability and total loss of time.

"Special Coverage

"Part M.

"Any accidental injury, fatal or otherwise, resulting in hernia, boils, carbuncles, felons, abscesses, ulcers, infection, ptomaine poisoning, cancer, diabetes, fits, peritonitis, apoplexy, sunstroke, freezing, hydrophobia, sprained or lame back, shall be paid for as provided in Parts K or L, anything to the contrary notwithstanding."

"Part A" and "Part B" deal, and apparently deal finally, with death benefits,...