Newsoms v. Commercial Cas. Ins. Co

• Decision Date: 17 March 1927
• Citation: Newsoms v. Commercial Cas. Ins. Co, 147 Va. 471, 137 S.E. 456 (1927)
• Parties: NEWSOMS. v. COMMERCIAL CASUALTY INS. CO.
• Court: Virginia Supreme Court

137 S.E. 456

NEWSOMS.

v.COMMERCIAL CASUALTY INS. CO.

Supreme Court of Appeals of Virginia.

March 17, 1927.

Rehearing Denied March 29, 1927.

Error to Circuit Court of City of Newport News.

Action by notice of motion for judgment by Sallie Newsoms against the Commercial Casualty Insurance Company.Verdict for plaintiff was set aside, and judgment entered for defendant, and plaintiff brings error.Reversed and rendered.

Nelms, Colonna & McMurran, of Newport News, and Thos. L. Woodward, of Suffolk, for plaintiff in error.

Hughes, Little & Seawell, of Norfolk, for defendant in error.

CHICHESTER, J. Sallie Newsoms, plaintiff below and hereafter referred to as plaintiff, was the beneficiary in a policy of insurance for $700 upon the life of one William Reid.Upon the death of the assured, resulting from an alleged accident, during the life of the policy which it is claimed met the condition that the policy insured, among other things, "against the effects of injury resulting, exclusively of other causes, from bodily injury sustained during the life of this policy solely through external, violent, and accidental means."

Upon the denial of responsibility by the company and refusal to settle the claim, action by notice of motion for judgment was instituted against the company, which resulted in a verdict in favor of the plaintiff in the sum of $700, which, upon motion of the defendant company, the trial court set aside and entered judgment for the defendant.The action of the court in setting aside the verdict and entering judgment for the defendant is assigned as error and is before us for review upon a writ of error duly granted.

The grounds upon which the defense rested were that William Reid did not die of the effects resulting directly and exclusively of all other causes from bodily injuries sustained through external, violent, and accidental means, and that the death of William Reid was due to causes not insured against by the policy, but that his death was due to natural causes.

The first ground of defense raises the legal question whether under the facts of this case, as the plaintiff contends they are established, by evidence and the verdict of the jury, the plaintiff is entitled to recover.

The evidence shows that the insured had always enjoyed good health and that he was in his usual good health on the morning of May 13, 1924.About 9:30 or 10 o'clock on that day he ate, for his breakfast, some cold canned beans and white meat; that shortly thereafter he was taken ill with violent cramps and began vomiting the pork and beans; that he declared to his daughter that the beans had made him ill; and that he died at 11:40 o'clock.

Admitting for the time being the death resulted from ptomaine poisoning or acute indigestion brought on by eating the beans, the question is whether this was external, violent, and accidental means within the meaning of those terms as used in the policy.

The authorities are not in entire harmony upon this question, but the weight of authority is to the effect that death resulting under the circumstances of this ease, or circumstances similar to those testified to here, meets the condition of a policy requiring that death shall result from injuries sustained solely through external, violent, and accidental means.

In Vance on Insurance, p. 569, it is said:

"The definition of accident, generally assented to, is an event happening without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual and not expected by the person to whom it happens."McGlinchey v. Fidelity & Casualty Co., 80 Me. 251, 14 A. 13, 6 Am. St. Rep. 191.

This definition has been so generally used and quoted as not to require additional citation.

It can certainly not be contended that the accident here in issue was under usual circumstances or expected by the insured, but, on the contrary, the evidence shows that the insured had been in good health for much over a year and up until the very minute of eating the canned pork and beans; that there was no thought of injury in any way, nor had there been any warning by even slight sickness that the beans would be apt to affect insured's health in any extraordinary way.Insured did not know they were harmful, nor are they inherently so by common knowledge.Under the circumstances, therefore, the death and accident* were anything else but usual and anything else but expected.

In Johnson v. Fidelity & Casualty Co., 184 Mich. 406, 151 N. W. 593, L. R. A. 1916A, 475, where it was held that ptomaine poisoning due to partaking of tainted food through mistake was within the terms of a policy insuring against death by external, violent, and accidental means, the court said:

"No question would be raised here, I take it, if the assured by mistake had taken carbolic acid, when he intended to take a helpful medicine.Travelers' Insurance Co. v. Dun-lap, 160 Ill. 642, 43 N. E. 765, 52 Am. St. Rep. 355.Why then, should it be said there is no liability when the assured, intending to take nourishing food,...