North American Acc. Ins. Co. v. Henderson

• Decision Date: 13 December 1937
• Docket Number: 32907
• Court: Mississippi Supreme Court
• Parties: NORTH AMERICAN ACC. INS. CO. v. HENDERSON

177 So. 528

180 Miss. 395

NORTH AMERICAN ACC. INS. CO. v. HENDERSON

No. 32907

Supreme Court of Mississippi

December 13, 1937

Division B

Suggestion Of Error Overruled January 24, 1938.

APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.

Action by William N. Henderson against the North American Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, for appellant.

Appellee's accident was not the result of accidental means. It is universally the rule that, in eases of this nature, where the burden is upon the insured to show that his injuries were the result of "external, violent and accidental means," that the insured must show not only that the resulting injury was an accident, but that the means which brought about the injury was also accidental. It is the appellant's contention in this case that the appellee was guilty of the grossest sort of negligence in stepping from the platform onto the narrow rail or ledge, on the rear end gate of the truck, with the heavy cans of ice cream in his hands. Being guilty of negligence himself there was not present any accidental means.

Rock v. Travelers Ins. Co., 156 P. 1029; 1 Cyc. 289; Price v. Occidental Life Ins. Co., 169 Cal. 800, 147 P. 1175; Whitehead v. Railway Mail Assn., 269 F. 25; Maryland Cas. Co. v. Spite, 246 F. 817; Carswell v Railway Mail Assn., 8. F.2d 612; Baldwin v. North American Acc. Ins. Co., 22 F.2d 111; Pope v. Prudential Life Ins. Co. of America, 29 F.2d 185; Nickman v. New York Life Ins. Co., 39 F.2d 763; Parker v. Provident Life & Acc. Ins. Co., 178 La. 977, 152 So. 583; Smith v. Metropolitan Life Ins. Co., 155 So. 789; Stone v. Fidelity & Cas. Co. of New York, 133 Tenn. 672, 182 S.W. 252, L. R. A. 1916D 536; Lavender v. Volunteer State Life Ins. Co., 171 Miss. 169, 157 So. 101.

The appellee's injury was the direct and proximate result of his voluntary act, and was not, in any sense, the result of accidental means.

Appellee cannot be said to be suffering from a total and permanent disability when submission to a minor operation would result in complete cure.

Finkelstein v. Metropolitan Life Ins. Co., 270 N.Y.S. 598; U. S. v. Gower, 71 F.2d --; Equitable Life Assur. Society v. Singletary, 71 F.2d 409; Cody v. John Hancock Mutual Life Ins. Co., 163 S.E. 4, 86 A. L. R. 354; Liberty Life Assur. Society v. Downs, 112 So. 484; U. S. v. Horn, 73 F.2d 770; Deadrich v. U.S. 74 F.2d 619; Prevette v. U.S. 68 F.2d 112; U. S. v. Ivey, 64 F.2d 653; Falbo v. U.S. 64 F.2d 948; U. S. v. Walker, 77 F.2d 415; Liberty Life Assurance Society v. Downs, 112 So. 484.

Appellee forfeited his right to recovery in this case because of failure to receive regular medical attention.

American Bankers Ins. Co. v. White, 158 So. 346, 171 Miss. 677.

Leonard B. Melvin, of Laurel, for appellee.

The courts of Tennessee hold that where the acts are intentional or the means of the injury are intentional, the insurer will not be liable, but if there is some intervening cause, as a slip or something unexpected that causes the insured to lose control of himself, then the means are accidental within the meaning of the policy.

Stone v. Fidelity & C. Co., 133 Tenn. 672, 182 S.W. 252.

The courts of Iowa, recognizing that the criterion on which the courts determine the liability of the insurer like the one at bar, says there should be some unforeseen incident occurring. Appellee meets this requirement in his uncontradicted evidence by stating that his foot slipped, and that he fell and struck himself on the corner of the truck and was thereby injured. Appellee's foot slipping was the unforeseen and unexpected incident that brings the case at bar within the rule of the Iowa courts.

McCarty v. Travelers Ins. Co., 7 A. L. R. 1138.

In the case at bar, appellee slipped and lost control of himself, and for this reason the means of his injury were accidental and within the meaning of the policy.

Preferred Acc. Ins. Co. v. Patterson, 130 C. C. A. 175, 213 F. 595, 7 A. L. R. 1139.

Appellee has endeavored in his brief to analyze as best as possible the many authorities cited by appellant in its brief. After examining these, authorities, I am unable to find one of them that holds that where the testimony Shows that the insured slipped, stumbled or some unforeseen and unexpected incident happened that caused the insured to lose voluntary control of himself that he was not entitled to recover. There are many authorities, which appellee will now cite that hold that even though there is no slip, stumble or some unforeseen and unexpected incident which caused the insured to lose voluntary control of himself, yet he is entitled to recover.

Rose v. Commercial Mut. Acc. Co., 12 Pa. S.Ct. 394; Summers v. Fidelity Mutual Aid Assn., 84, Mo.App. 605; Atlanta Acc. Assn. v. Alexander, 104 Ga. 709, 42 L. R. A. 188, 30 S.E. 939; U. S. Mut. Acc. Assn. v. Barry, 33 L.Ed. 60, 9 S.Ct. 755; General Acc. & Life Assur. Corp. v. Meredith, 141 Ky. 92, 132 S.W. 191; Patterson v. Ocean Acc. & Guarantee Corp., 25 App. D. C. 46; Carswell v. Railway Mail Assn., 8 F.2d 612; Budde v. National Travelers Ben. Assn., 184 Iowa 1219, 169 N.W. 766; North American Life & Acc. Ins. Co. v. Burroughs, 69 Pa. 43, 8 Am. Rep. 212; 42 A. L. R. 244; 14 A. L. R. 790: 35 A. L. R. 1191; Pledger v. Business Men's Assn., 197 S.W. 889; Campbell v. Aetna Life Ins. Co., 222 S.W. 778; Husbands v. Indiana Travelers Acc. Assn., 130 N.E. 874; 14 R. C. L., page 1239, sec. 419.

The best reasoned case that appellee has been able to find, and a case wherein ali of the authorities are cited and the holdings given, is the case of Lickelieder v. Iowa State Traveling Men's Association, 166 N.W. 363, 168 N.W. 884, 3 A. L. R. 1295.

These many decisions lead appellee to the inevitable conclusion that the facts of the accident here sued on bring this case within the ruling of these decisions; that the means causing the accident were accidental means; that when the appellee testified that he slipped and fell and that he struck the corner of a steel truck, that this was the cause of his accident. Therefore, appellee respectfully submits that he should be entitled to recover under the terms of his policy.

Since appellant contends that it is only necessary that appellee submit himself to a miner operation, and the evidence herein clearly defines the operation necessary to cure him, if in fact it will cure him, as a major operation, defined by the medical testimony in this case, I am unable to understand how the contention off appellant can avail them any good in this court.

Liberty Life Assur. Society v. Downs, 112 So. 484.

Stedams Medical Dictionary, 1930 Edition, page 732, defines a major operation as an operation of great extent or involving vital organs; thereby exposing the patient directly to danger of death; and defines a minor operation as an operation to slight extent and not in itself dangerous to life.

The policy herein sued on uses the words total and continuous disability and the cases cited by appellant in its brief are only to eases that use the words total and permanent disability. This court has many times construed a policy using the words "total and permanent disability" and has in a few instances (Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114; Equitable Life Ins. Society v. Serio, 124 So. 485; Metropolitan rife Ins. Co. v. Lambert, 125 So. 750) construed policies of the same provision as herein sued on, and in these cases this court has held that the words "total and continuous" are synonymous with the words "total and permanent." Counsel for appellant do not seem to here question the fact that appellee is totally disabled, and that he has been totally disabled over the period for which this suit was brought, but they state that he could be cured by a simple operation, which statement of theirs is contrary to the evidence in this case.

The rule is that the jury is the judge as to whether or not under all of the facts of each particular case, that the insured, or injured, should be required to take a simple operation. I have not been able to find where any decision has required the insured to subject himself to a major operation.

17 C. J., 780.

Appellee, therefore, respectfully submits that the evidence in this case shows that the operation is a major operation and the results uncertain, and that the evidence further shows that appellee has not been financially able to obtain the operation necessary; and appellee respectfully submits that the court should not permit an insurance company where liability exists to require the insured to submit himself to a major, serious and uncertain operation. Pot an insurance company to be permitted to take this position would mean that disability insurance would be practically worthless, and it would also mean that unless a person was totally disabled, and also hopelessly disabled, he could never draw the benefits of disability insurance.

The policy now under consideration only requires that the insured shall be under the professional care of a legally qualified physician, and does not require any definite number of days between the visits.

OPINION

Griffith, J.

Appellee was insured under a health and accident policy issued by appellant, and which was in full force on the day of the injury hereinafter mentioned. The principal provision of the policy, insuring against injury by accidental means, was and is as follows: "If the Insured, while this policy is in force, shall sustain personal bodily injury, which is effected directly and independently of all other causes through external violent and accidental means and which injury causes at once total and continuous disability and...