Mutual Life Ins. Co. v. Dodge

• Decision Date: 27 February 1926
• Docket Number: No. 2383.,2383.
• Citation: 59 ALR 1290,11 F.2d 486
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. DODGE.
• Court: U.S. Court of Appeals — Fourth Circuit

59 ALR 1290, 11 F.2d 486 (1926)

MUTUAL LIFE INS. CO. OF NEW YORK v. DODGE.^*

No. 2383.

Circuit Court of Appeals, Fourth Circuit.

February 27, 1926.

Forrest Bramble and Randolph Barton, Jr., both of Baltimore, Md. (Frederick L. Allen, of New York City, on the brief), for plaintiff in error.

Emory H. Niles and Alfred S. Niles, both of Baltimore, Md. (Niles, Wolff, Barton & Morrow, of Baltimore, Md., on the brief), for defendant in error.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

PARKER, Circuit Judge.

This was an action instituted by Winnie G. Dodge, as beneficiary under a policy of insurance issued by the Mutual Life Insurance Company of New York on the life of her deceased husband, Dr. Geo. F. Dodge. The policy sued on was for the sum of $10,000, with double indemnity in case of accidental death. The company paid the $10,000, but contested its liability under the double indemnity provision. There was a judgment in favor of plaintiff, and defendant brings this writ of error.

The double indemnity provision, which is the only part of the policy which need be considered, provides for the payment of double the amount of the face of the policy, if death results "directly from bodily injury, * * * independently and exclusively of all other causes," and if such bodily injury be effected "solely through external, violent, and accidental means: * * * Provided, however, that this double indemnity shall not be payable * * * if such death result * * * directly or indirectly from bodily or mental infirmity or disease of any sort."

Insured's death resulted from paralysis of the respiratory center, caused by the local administration of a drug known as novocaine preliminary to an operation for the removal of tonsils. The evidence is that insured was in good health and had no bodily infirmity or disease, except the diseased condition of the tonsils, which admittedly did not contribute to his death. Insured, who was a physician himself, had observed the operating physician use novocaine in operations performed on other patients. He knew that it was to be used as a local anæsthetic in his case, and it was applied in the usual manner. It is admitted that ordinarily novocaine is absolutely harmless, and the evidence is that it proved fatal to insured because, unknown to himself and the operating physician, he had an "idiosyncrasy" or "hypersusceptibility" to the drug. The uncontradicted testimony of the experts is that this "idiosyncrasy" or "hypersusceptibility" is not an infirmity or disease, but merely a peculiarity of the individual, which is not discoverable by any test or examination, and which is found only in instances so exceedingly rare that it is not taken into account as a danger in administering the drug.

The court denied a motion for a directed verdict by defendant and gave the jury the following instruction, to which defendant excepted, viz.:

"If the jury shall find that there was injected into the deceased a quantity of the drug novocaine for the purpose of inducing anæsthesia, and that the natural and probable effect of novocaine administered in the manner and in the quantity used in this case is to induce local anæsthesia without injury to the patient, and if they shall further find that by reason of a bodily idiosyncrasy of the insured whereby he was unusually susceptible to said drug, which susceptibility was unforeseen and unexpected, and the action of the drug was to cause death, then their verdict shall be for the plaintiff."

The points presented by the other exceptions are the same as those addressed to the refusal to direct a verdict and the giving of the instruction above quoted. They are: (1) That the death of insured was not due to accidental means; (2) that the idiosyncrasy of insured was a bodily infirmity within the meaning of the double indemnity clause; and (3) that the idosyncrasy was at least a contributing cause of death, and hence the administration of the anæsthetic was not the sole means even if accidental.

We think that the learned District Judge was correct in overruling the defendant's motion and in giving to the jury the instruction quoted above. We have given careful consideration to the points relied upon by defendant in the light of the very able brief filed in its behalf, but in our opinion none of the points can be sustained. We think that not only was the death of insured an "accidental death," but that it was also a death caused by "accidental means," within the meaning of the double indemnity clause.

"Accidental" is defined in Webster's Dictionary as "happening by chance, or unexpectedly; taking place not according to the usual course of things; casual; fortuitous; as an accidental visit." And in defining the term "accidental means" Corpus Juris says: "Where the effect is not the natural and probable consequence of the means which produce it — an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce and which he cannot be charged with a design of producing — it is produced by accidental means." 1 C. J. 427.

Cooley's Briefs on Insurance, at page 3156, gives practically the same definition. Judge Sanborn, speaking for the Circuit Court of Appeals of the Eighth Circuit, says: "An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, * * * is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an...