Northam v. Metropolitan Life Ins. Co.

• Decision Date: 17 October 1935
• Docket Number: 6 Div. 660
• Citation: 163 So. 635,231 Ala. 105
• Parties: NORTHAM v. METROPOLITAN LIFE INS. CO.
• Court: Alabama Supreme Court

163 So. 635

231 Ala. 105

NORTHAM v. METROPOLITAN LIFE INS. CO.

6 Div. 660

Supreme Court of Alabama

October 17, 1935

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action on a policy of insurance by Willis L. Northam against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Andrew H. Knight and Whit Windham, both of Birmingham, for appellant.

Cabaniss & Johnston and L.D. Gardner, Jr., all of Birmingham, for appellee.

KNIGHT Justice.

The complaint, as amended, consisting of only one count, is based upon an accident policy insuring against the "result of bodily injury suffered while the policy was in full force and caused directly and independently of all other causes by violent and accidental means." The sufficiency of the complaint is not now questioned. The defendant pleaded, in short by consent, the general issue, with leave to give in evidence any matter which, if well pleaded would be admissible in defense of the action. For convenience, the parties will be referred to as they appeared in the lower court.

The case is before us on appeal by the plaintiff, and the only assignment of error presents for review the propriety of the court's action in giving, at the request of the defendant, the general affirmative charge, with hypothesis.

The sufficiency of notice and proof of loss is not questioned nor is the fact that the policy sued on was in full force and effect, at the time the plaintiff received his injuries controverted by the defendant. Likewise the fact that the plaintiff's injuries resulted in permanent disability up to the time of the filing of the suit is not challenged by the defendant. So the sole question in the court below was and here is, whether the plaintiff's injuries, resulting in his permanent disability, comes within the coverage of the insurance contract. The evidence touching this phase of the plaintiff's case was without conflict.

Inasmuch as the lower court gave the general affirmative charge for the defendant, it remains only to determine whether there was any evidence before the jury tending to support plaintiff's case.

The defendant insured the plaintiff "against the results of bodily injuries while this policy is in force and caused directly and independently of all other causes by violent and accidental means. ***"

But this general clause had its exceptions.

Clause 9, "Risks Excluded," is in the following words: "This insurance shall not cover suicide or any attempt thereat while sane or insane; nor shall it cover injuries, fatal or non-fatal, sustained while participating in aviation or aeronautics except as fare paying passenger; nor shall it cover accident, injury, disability, death or any other loss caused wholly or partly, directly or indirectly, by disease or bodily or mental infirmity or medical or surgical treatment therefor; nor shall it cover injury, disability, death or any other result caused wholly or partly, directly or indirectly, by ptomaines or disease germs or any kind of infection, whether introduced or contracted accidentally or otherwise (excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means). ***" (Italics supplied.)

It will then be seen that the coverage of the policy, by its terms, is extremely narrow, but parties may, if they see proper, make their own contract, so long as they do not offend some rule of law or contravene public policy. It is, as we have often of late had occasion to point out with reference to insurance contracts, the duty of the court to enforce the contracts as made by the parties, and not to rewrite, or to distort, under the guise of judicial construction, contracts, the terms of which are plain and unambiguous. Nor are we justified in refining away the terms of a contract expressed with sufficient clearness to convey the intent and meaning of the contracting parties. McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; Day v. Home Ins. Co., 177 Ala. 600, 58 So. 549, 40 L.R.A.(N.S.) 652; Union Mutual Aid Ass'n v. Carroway, 201 Ala. 414, 78 So. 792; Montgomery Enterprises et al. v. Empire Theater Co., 204 Ala. 566, 86 So. 880, 19 A.L.R. 987; Protective Life Ins. Co. v. Hale (Ala.Sup.) 161 So. 248; Alabama Gold Life Ins. Co. v. Thomas, 74 Ala. 578.

As above pointed out, there is no conflict in the evidence. It appears that on or about the 7th or 8th day of January, 1933, the plaintiff, in shaving, noticed a slight pimple on the left side of his face, which he "took to be a couple of hairs doubled up under the skin." He thereupon took a needle which he knew was not sterilized, and raised the hairs so that he could remove the same with tweezers. With the tweezers he extracted the hairs, and in so removing them made an open and visible wound, from which a slight amount of blood oozed out. No slip or mishap occurred, so far as the evidence shows, in pricking the skin and extracting the hairs. The following morning plaintiff noticed that this particular portion of his face was red and swollen. Prior to the occurrence, plaintiff's health was good. The wound on plaintiff's face grew steadily worse day by day. Physicians were called in to treat him; he was removed to the hospital. Infection, described by the physicians to be osteomyelitis, set in, and as a result dire consequences ensued rendering plaintiff wholly disabled, and which disability continued to the time of the filing of the suit. The medical experts testified that, in their opinion, the disease germs were introduced into plaintiff's system by the instrument used in raising the hairs. According to their testimony, osteomyelitis is an acute destructive disease of the bone and is caused by blood-stream infection. The source of the infection comes from the outside; it must be introduced, and, according to the physician's testimony, the trouble from which the plaintiff suffered would be properly classified as septic infection.

Unquestionably, from the evidence in the case, whatever visible wound there was on plaintiff's face was intentionally inflicted by himself, and the question to be determined is, Does the policy, under its narrow and limited coverage, cover the plaintiff's case? Confessedly, if the plaintiff can point to any provision of the policy contract which aids him, it is found in the following words: "Excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means." Unless plaintiff's case comes within this exception to "Risks Excluded" by clause 9 of the policy contract, the plaintiff has no cause of action, and the court properly gave the affirmative charge for defendant.

The appellant has brought to our attention some authorities which he insists sustain his contention that the injury he received was caused by accidental means and through a visible wound.

While some authorities seem not to draw, or to recognize, the distinction, yet by the great weight of the adjudged cases a distinction is drawn between an accidental result and a result which is caused by accidental means; the former class holding that the result need only be accidental, while the latter class hold that, not only must the result be accidental, but the cause or means which produced or brought about the result must also be accidental.

The cases principally relied upon by the appellant are Lewis v. Ocean Accident & Guarantee Corporation, Limited, 224 N.Y. 18, 120 N.E. 56, 57, 7 A.L.R. 1129, Interstate Business Men's Accident Ass'n v.

Lewis (C.C.A.) 257 F. 241, and Iowa State Traveling Men's Ass'n v. Lewis (C.C.A.) 257 F. 552. These cases do not seem to recognize the above-noted distinction, and in those cases the court held that the unintentional introduction of disease germs into the body through an opening intentionally made, resulting in infection, is an injury caused by accidental means.

The first-mentioned case, Lewis v. Ocean Accident & Guarantee Corporation, Limited, was decided by the Court of Appeals of New York. The facts in the case were: That the insured had a pimple on his lip, which looked like an ordinary pimple. A day or so after it first made its appearance the pimple grew larger and more inflamed. A physician was called in, and this physician testified that, when he saw the patient, there was a punctured wound in the lip, which had inflamed and infected the deep tissues. The lip was opened by the physicians, and remedies were applied. They were of no avail. The infection grew, and a week later the insured became paralyzed and blind. The patient died. His death was pronounced due to inflammation of the brain, caused by the germ known as the staphylococcus aureus. The germ came from the infected pimple.

In speaking for the court, Justice Cardozo observed: "We think there is testimony from which a jury might find that the pimple had been punctured by some instrument [but whether intentionally or not does not appear from the opinion], and that the result of the puncture was an infection of the tissues. If that is what happened, there was an accident. We have held that infection resulting from the use of a hypodermic needle is caused by 'accidental means.' Bailey v. Interstate Casualty Co., 8 A.D. 127, 40 N.Y.S. 513; Id., 158 N.Y. 723, 53 N.E. 1123; Marchi v AEtna Life Ins. Co., 140 A.D. 901, 125 N.Y.S. 1130; Id., 205 N.Y. 606, 98 N.E. 1108. The same thing must be true of infection caused by the puncture of a pimple. Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing. Of itself, the scratch or the...