Ramsey v. Fidelity & Cas. Co.

• Decision Date: 01 June 1920
• Parties: RAMSEY v. FIDELITY & CASUALTY CO.
• Court: Tennessee Supreme Court

223 S.W. 841

143 Tenn. 42

RAMSEY v. FIDELITY & CASUALTY CO.

Supreme Court of Tennessee.

June 1, 1920

Error to Chancery Court, Shelby County; I. H. Peres, Chancellor.

Suit by Edna C. Ramsey against the Fidelity & Casualty Company. To review decree dismissing the bill, complainant brings error. Decree affirmed.

Fitzhugh Murrah & Fitzhugh and Alfred Sohm, all of Memphis, for plaintiff in error.

Ewing King & King, of Memphis, for defendant in error.

HALL J.

The bill in this cause was filed by the complainant in the chancery court of Shelby county, to recover of the defendant the sum of $7,500, together with interest and penalties alleged to be due the complainant as beneficiary under an accident insurance policy issued by the defendant to her husband, Jeff B. Ramsey, who died on February 6, 1918, while the policy was in force and effect.

The allegations of the bill, setting forth the grounds on which the liability of the defendant is predicated, are as follows:

"Complainant avers that after the issuance of said policy the same was renewed by the payment of renewal premiums, and that while the said policy was in full force and effect, on to wit, the 6th day of February, 1918, the said Jeff B. Ramsey died in the city of Memphis, Shelby county, Tenn., from blood poisoning which resulted directly and independently of all other causes from bodily injury through accidental means within the meaning of the provisions of said policy of insurance; that the bodily injury consisted of the laceration of tissue and breaking down of a portion of the walls surrounding a tooth of the said Jeff B. Ramsey, which was extracted on or about January 26 or 31, 1918, and as a result of the said bodily injury a port of entry for bacteria into the circulatory system was accidentally created, and that through said bodily injury thus sustained bacteria did enter into the blood circulation of the said Jeff B. Ramsey, producing blood poisoning, from which he died, on, to wit, February 6, 1918; that his said death resulted directly, independently, and exclusively from all other causes from such bodily injuries so sustained through accidental means under the terms of said policy, to wit, the injury to the tissue or wall caused by the pulling of a tooth, which bodily injury made a port of entry for bacteria or germs into the circulatory system, which directly and proximately resulted in blood poisoning."

The policy contained the following clauses:

"The Insuring Clause.

The Fidelity & Casualty Company of New York (herein called the company) does hereby insure the person (herein called the assured) named in statement A of the Schedule of Warranties against bodily injury sustained during the term of one year from noon, standard time, of the day that this policy is dated, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and resulting directly, independently and exclusively of all other causes, in--"

"Blood Poisoning.

Article 7. Blood poisoning resulting directly from a bodily injury shall be deemed to be included in the said term, bodily injury."

The defendant demurred to the bill on the following grounds:

"(1) There is no equity on the face of the bill.

(2) The bill affirmatively shows that the death of the deceased was not caused by accidental means within the terms of the policy sued on. It shows that the deceased intentionally extracted, or had extracted, a tooth which caused a laceration of the gum, and an infection subsequently set up. It shows that the injury to the gums was the result of an intended act, and in no sense was caused by accidental means.

Wherefore the defendant prays the judgment of the court whether it shall be required to answer further."

The chancellor sustained the demurrer and dismissed the bill, being of the opinion that it did not state a cause of action, it not being alleged that the bodily injury stated and described therein was caused by accidental means. The complainant, however, was allowed 60 days by the chancellor within which to amend her bill so as to meet the objection of the demurrer, and, unless such amendment was made within said time, the order provided that the bill would stand dismissed.

The complainant did not amend her bill, and it therefore stood dismissed at the expiration of the 60 days.

The record was filed for writ of error, and the cause is now before this court. There was a motion made by the defendant in this court to have the writ of error dismissed, but we understand from statements of counsel for defendant, made at the bar of the court upon the argument of the cause, that this motion is no longer relied on; at any rate, we are of the opinion that the motion is not well taken, and the same is overruled, and need not be further noticed.

By her assignments of error complainant insists that the chancellor erred in holding that the bill did not state a cause of action, because it did not allege that the bodily injury, which resulted in blood poisoning, was sustained through accidental means.

We are of the opinion that there is no error in the holding of the chancellor. The bill does not allege that the means causing the injury were accidental. The bill does not allege that the tooth was pulled by accident, nor does it allege that any accident happened while the tooth was being pulled. The means by which the gum was injured were intentionally and purposely applied. The insured knew that the inevitable result of pulling the tooth would be to break down and lacerate the gum tissue. It was the result that followed the pulling of the tooth and the laceration of the gum tissue that was unlooked for, unexpected, and unforeseen. There can be no inference from the allegations of the bill that there was any accident in connection with the pulling of the tooth. The injury, which resulted to the gum from the pulling of the tooth, was the ordinary and natural result of such an operation.

It was held by this court in Stone v. Fidelity & Casualty Co., 133 Tenn. 673, 182 S.W. 252, L. R. A. 1916D, 536, Ann. Cas. 1917A, 86, that the general rule is that an injury is not produced by accidental means within the meaning of an accident policy, where the injury is the natural result of an act, or acts, in which the insured intentionally engages. In that case this court, speaking through Special Justice Fancher, said:

"A person may do certain acts the result of which produces unforeseen consequences resulting in what is termed an accident; yet it does not come within the terms of this contract. The policy does not insure against an injury that may be caused by a voluntary, natural, ordinary movement, executed exactly as was intended.

Therefore, to determine the matter, we look, not to the result merely, but to the means producing the result. It is not sufficient that the injury be unusual and unexpected, but the cause itself must have been unexpected and accidental."

In that case Stone (the insured) had attended a football game on a cool day when the ground was damp and contracted a cold, resulting in lumbago, and who, after medical treatment and the debility resulting from a purgative which he had taken, and while lying in bed, had a paper brought, reached for it, and raised it suddenly above his head, when his strong blood pressure caused a rupture of the retina, destroying the sight of one eye. In that case the court further said:

"The movement of the hand suddenly to get the paper was executed exactly as intended. It was a simple and ordinary movement. The rushing of the blood with excessive pressure, rupturing the retina, was therefore caused by natural means. While the result was not foreseen, the causes producing that result were not accidental. It is well in line with the cases above cited sustaining the majority rule, which we adopt. This rule affords a reasonable interpretation of the

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