Provident Life & Accident Ins. Co. v. Campbell

• Decision Date: 25 August 1934
• Court: Tennessee Supreme Court
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. CAMPBELL. PENN MUT. LIFE INS. CO. v. SAME.

79 S.W.2d 292

PROVIDENT LIFE & ACCIDENT INS. CO. v. CAMPBELL.

PENN MUT. LIFE INS. CO. v. SAME.

Court of Appeals of Tennessee, Eastern Section.

August 25, 1934.

Certiorari Denied by Supreme Court February 23, 1935.

Appeal in Error from Circuit Court, Hamblen County; H. T. Campbell, Judge.

Actions by Mrs. G. H. Campbell against the Provident Life & Accident Insurance Company, and against the Penn Mutual Life Insurance Company. Judgment for plaintiff, and defendants appeal in error.

Reversed, verdicts set aside, and suits dismissed.

Taylor & McCanless, of Morristown, and Frantz, McConnell & Seymour, of Knoxville, for Provident Life & Accident Ins. Co.

Kennerly & Key, of Knoxville, for Penn Mut. Life Ins. Co.

McMahan & Gilbreath, of Morristown, for Mrs. G. H. Campbell.

FAW, Presiding Judge.

The transcript contains the record of two separate cases tried together by consent in the circuit court.

One of these cases is an action brought by Mrs. H. E. Campbell (also known in the record as Mrs. Gertrude H. Campbell) against the Provident Life & Accident Insurance Company, upon an accident insurance policy issued by said company on July 18, 1932, to H. E. Campbell, by which policy said insurance company agreed to pay the sum of $1,000 in the event of the death of the insured by accidental means as defined in the policy. The insured, H. E. Campbell, died on October 2, 1932. The plaintiff, who was the wife of the insured, was named as the beneficiary in case of his death.

The other of the two cases is an action brought by the same plaintiff upon a life insurance policy issued by the Penn Mutual Life Insurance Company on April 13, 1927, to H. E. Campbell, in the sum of $1,000, and providing for double indemnity in case of the death of the insured by accidental means. The plaintiff was likewise named as beneficiary in the last-named policy. The amount of ordinary life insurance, viz., the sum of $1,000, was paid to the beneficiary by the insurer, but the insurance company denies liability for the "double indemnity."

The cases were tried to a jury, and the jury found the issues in favor of the plaintiff and against the defendants, and assessed the plaintiff's damages at $1,000 and interest from the date of the filing of suit in each of the two cases.

The trial court overruled a motion for a new trial on behalf of each of the defendants, and rendered judgment against the defendant on the verdict in each case for $1,020 and one-half of the costs of "the consolidated cases," and declared a lien on the recoveries for the "reasonable or contract fees" of plaintiff's attorneys.

The defendants, the insurance companies, have appealed in error to this court and have separately assigned errors here. However, the assignments of error present substantially the same questions for decision, with an exception, which will be first examined.

1. The Penn Mutual Life Insurance Company assigned error upon the action of the trial court in overruling its demurrer to plaintiff's declaration.

(The Provident Life & Accident Insurance Company did not demur to the plaintiff's declaration against it.)

So far as necessary to be stated for the consideration of the demurrer, the plaintiff avers in her declaration that said insurance policy issued by the defendant Penn Mutual Life Insurance Company contains, under the caption "Double Indemnity Benefit," the following:

"The Company agrees to increase the amount to double the face amount stated above upon receipt of due proof that the death of the insured resulted solely from bodily injuries sustained through accidental means before the policy anniversary on which the age of the insured at nearest birthday is seventy years, as provided in section five."

And that section 5 of said policy reads as follows:

"Double Indemnity Benefit: The Company will pay a Double Indemnity Benefit equal to and in addition to the face amount of this Policy, upon receipt of due proof that the death of the insured resulted solely from bodily injuries effected directly and exclusively by external, violent and accidental means, and that such death occurred within sixty days after sustaining such injuries. This Double Indemnity Benefit shall not be payable if the death of the insured resulted directly or indirectly from illness or disease of any kind or from physical or mental infirmity; from poison administered whether accidentally or intentionally by the insured or by another; from self-destruction at any time whether sane or insane; from any violation of law by the insured; from aeronautic or submarine casualty; or if the injuries were sustained while performing Military or Naval Service in time of war or riot, or while performing police duty as a member of any Military or Naval or Police organization. The Company shall have the right and opportunity to examine the body and to make an autopsy unless prohibited by law."

Plaintiff's declaration contains further averments as follows:

"Plaintiff alleges that on October 2, 1932, while her said husband, Henry Elbert Campbell, the insured, was driving his automobile West Third North Street, near the Methodist Episcopal Church in Morristown, Tennessee, and at or near the intersection of said Street and Jackson Street, he accidentally drove said automobile against and over the body of one Harlan Davis, an infant son of Charles Davis, thereby crippling and maiming said child, and as a result of said accident and injury said insured received a terrific physical and mental shock, as a result of which the insured himself died in about thirty minutes after said accident. That immediately after the accident and within a period of about five to ten minutes the insured was driven to the Morristown General Hospital, to which the injured child had been taken, upon arrival there was suffering intensely from shock, called a physician and was treated for said shock and by said physician was directed to be taken home and put to bed where he could remain quiet, until said shock abated; that he was immediately taken home and within five minutes after his arrival there he died. * * *

"Plaintiff further alleges that the death of her said husband, the insured, was caused by the shock he received at the time of said accident above detailed, and that his death resulted solely from the shock and injuries thereby received at the time and place of said accident, through accidental means, and that his death was, therefore, accidental within the meaning of the terms and provisions contained in said policy contract, and as a matter of law and fact.

"And she avers that defendant's denial of liability and failure to pay her, the Beneficiary under said policy, the full amount of double indemnity insurance contracted to be paid, was a breach of said insurance policy contract, and that she is, therefore, entitled to sue for said amount."

Aside from the general demurrer that the declaration does not state a cause of action against the defendant (which need not be considered because of its generality) the grounds of the demurrer are as follows:

"(a) Because the declaration shows upon its face that the death of the insured, Henry Elbert Campbell, did not result solely from bodily injuries effected directly and exclusively by external, violent and accidental means.

"(b) Because the declaration shows upon its face that the death of the insured, Henry Elbert Campbell, did not result solely from bodily injuries.

"(c) Because the declaration fails to show that the death of the Insured, Henry Elbert Campbell, did not result directly or indirectly from illness or disease of any kind, or from physical or mental infirmity."

It is seen that, according to the averments of the declaration, the death of the insured was caused by "a terrific physical and mental shock" resulting from an accidental collision of an automobile, driven at the time by the insured, with the body of a child, and that the death of the insured resulted from said shock. This means, of course, that the death of the insured was caused by a physical shock and a mental shock.

From the definitions of the noun "shock," given in Webster's New International Dictionary and Funk and Wagnalls New Standard Dictionary, we find that a "shock" is "a sudden agitation of the physical or mental sensibilities" (Webster); that a physical shock is "a blow, impact, collision, concussion, or violent shake or jar" (Webster) or "a violent collision of bodies, or the concussion caused by it; a sudden striking or dashing together or against something" (Standard Dictionary); that a "mental shock" is "a sudden agitation of the mind; startling emotion; as the shock of a painful discovery, a shock of grief or joy" (Standard Dictionary); and that in a medical or pathological sense a "shock" is "a sudden depression of the vital forces of the entire body, or a part of it, marking some profound impression produced upon the nervous system, as by severe injury, a surgical operation, profound emotion, or the like" (Webster), or, "a prostration of the bodily functions, as from sudden injury or mental disturbance" (Standard Dictionary).

The above-mentioned policy does not purport to be a contract of indemnity against death effected by all accidental means; and the demurrant asserts that the declaration shows upon its face that the death of the insured did not result solely from bodily injuries effected directly and exclusively by external, violent, and accidental means. If this be the proper interpretation of the declaration, it does not state a good cause of action, and the demurrer should have been sustained. Illinois Commercial Men's Association v. Parks (C. C. A.) 179 F. 794, 800; Maryland Casualty Co. v. Morrow (C. C. A.) 213 F. 599, 600, 52 L. R. A. (N. S.) 1213; Kerns v. Ætna Life Insurance Co. (C. C. A.) 291 F. 289, 292; Chase v. Business Men's Assurance Co. (C. C. A.) 51 F.(2d) 34; Cretney v. Woodmen Accident Co., 196 Wis. 29, 219 N. W. 448, 62 A. L. R. 675,...