Ocean Accident & Guarantee Corp. v. Glover

• Decision Date: 14 November 1935
• Citation: 182 S.E. 221
• Court: Virginia Supreme Court
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited. v. GLOVER.

182 S.E. 221

OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.

v.GLOVER.

Supreme Court of Appeals of Virginia.

Nov. 14, 1935.

Appeal from Circuit Court, Clarke County.

Action by Lewis N. Glover, executor, against the Ocean Accident & Guarantee Corporation, Limited. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY. BROWNING, CHINN, and EGGLES-TON, JJ.

Kern & Kern, of Winchester, for appellant.

Moore & Williams, of Berryville, for appellee.

CAMPBELL, Chief Justice.

This action was brought by Lewis N. Glover, executor, to recover the sum of $1,500 from the Ocean Accident & Guarantee Corporation, Limited, under a policy of insurance issued to plaintiff's testator, Eugene Glover. A trial by jury was had and resulted in a verdict for the plaintiff, which verdict the trial court affirmed.

The policy issued by the defendant covered "loss or disability resulting directly, independently and exclusively of all other causes, from bodily injuries effected solely through accidental means."

The insured, at the date of his death, was clerk of the circuit court and prior thereto had been engaged in the insurance business; he was fifty-seven years of age and seemingly in perfect health.

The uncontroverted evidence is that insured had a pimple or boil inside the nose; that in an effort to relieve the pain result-ing therefrom, he picked the pimple or boil with a "knife or needle"; that following this puncture of the pimple or boil, inflammation set in and insured consulted his physician, who, upon examination, found "rough, jagged punctures" in the boil or pimple. Insured immediately was placed in a hospital and died shortly thereafter from septicaemia resulting from the infection being carried into the blood stream following the puncture of the boil or pimple.

The preponderating evidence is that death was produced by the germ known as staphylococcus, which before being punctured was confined in the boil or pimple, and which, as a result of the act of insured, was injected into the blood stream; that it was not usual for septicaemia to follow the puncturing or bruising of a boil or pimple.

Dr. McKee, an expert witness introduced by the defendant, in response to questions propounded by the trial court, testified in part as follows:

"Q. Do I understand also a person may tamper with a boil, squeeze or break it and still not cause septicaemia at all?

"A. That is usual.

"Q. In other words--it usually does not cause it? "A. Yes.

"Q. When it does cause it it is unusual rather than usual? "A. Yes."

The defendant assigns as error the action of the court in giving and refusing instructions and in refusing to set aside the verdict.

The determinative question is one of law--whether or not the injuries resulting in the death of the insured were effected by accidental means and fall within the coverage clause of the policy of insurance.

Webster's New International Dictionary (1933) gives the following definitions of "accident" and "accidental":

"Accident: n. An event that takes place without one's foresight or expectation; an undesigned, sudden and unexpected event; chance; contingency, often; an undesigned and unforeseen occurrence of an afflicted or unfortunate character; casualty, mishap; as, to die by accident.

"Accidental: adj. Taking place not according to the usual course of things. Synonyms: undesigned; unintended; chance; unforeseen; unexpected; unpre meditated; dependent; conditional; accidental applies to that which happens without design or wholly outside the regular course of things. 'Incidental' (see event) implies a real and, it may be, even a designed relation, but one which is secondary and nonessential; as, an incidental result, benefit, incidental expenses."

Mr. Justice Blatchford, in the leading case of U. S. Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 762, 33 L. Ed. 60, says: "The court properly instructed them [the jury] that * * * the term 'accidental' was used in the policy in its ordinary, popular sense, as meaning 'happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected'; that if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means."

We think that the verdict of the jury, based upon competent evidence, is conclusive of plaintiff's contention that the death of the insured which resulted from his act of puncturing the boil or pimple was not the natural or probable consequence of the insured's act, but came about unexpectedly and by chance. There is no proof that insured knew that such an act would produce such dire consequences.

In the opinion of the medical experts who testified in the case, it is a common practice for one to "pick" a boil, and while it is a dangerous proceeding from a medical standpoint, it is not a common occurrence for septicaemia to follow such an act.

While the question presented is one of first impression here, it is not a new one, as shown by the decided cases.

In Continental Casualty Company v. Willis (C. C. A.) 28 F.(2d) 707, 709, 61 A. L. R. 1069, we read:

"The deceased was insured against septicaemia resulting from the happening of an external, violent, and purely accidental event, and whether the breaking of the skin of the deceased's finger was caused by pricking it, or was the unexpected and unusual result of the proper use of the disinfectant, in either case it was an accidental event, and came within the meaning of the words of the policy."

A case very much in point is that of Lewis v. Ocean Accident and Guarantee Corporation, from the Court of Appeals of New York and reported in 224 N. Y. 18, 120 N. E. 56...