Reagan v. Mid-Continent Underwriters, Inc.

• Decision Date: 04 February 1963
• Docket Number: No. 919,MID-CONTINENT,919
• Citation: 150 So.2d 75
• Parties: Mrs. Jeanne LABICHE, Widow of Thomas REAGAN, Jr., as Natural Tutrix of Thomas N. Reagan v.UNDERWRITERS, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 75

150 So.2d 75

Mrs. Jeanne LABICHE, Widow of Thomas REAGAN, Jr., as Natural

Tutrix of Thomas N. Reagan v. MID-CONTINENT UNDERWRITERS, INC., et al.

No. 919.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 4, 1963.

Rehearing Denied March 4, 1963.

Certiorari Refused April 17, 1963.

Lemle & Kelleher, Harry B. Kelleher, Murphy Moss, New Orleans, for plaintiff and appellee.

William A. Porteous, Jr., New Orleans, and William Garth Symmers, New York City, for defendants and appellants.

Before McBRIDE, CHASEZ and HALL, JJ.

McBRIDE, Judge.

Thomas Reagan, Jr., was the holder of and assured under two separate certificates or policies of insurance, each in the principal sum of $100,000, which insured his life against the risk of death caused by accident 'solely and independently of any other cause,' and specifically excluded death 'directly or indirectly caused or contributed to by * * * disease or natural causes.' The assured's teenaged son, Thomas N. Reagan, was named in each policy as the beneficiary. The question to be determined in this case is whether the death of the assured, which occurred under very unusual circumstances at his home 46 Lark Street, New Orleans, was accidental 'solely and independently of any other cause.'

Thomas Reagan, Jr., the assured, died suddenly December 19, 1960, and his surviving widow, Mrs. Jeanne Labiche Reagan, as natural tutrix of the minor beneficiary, brings this suit in the minor's behalf against the defendants to recover the face value of each of said certificates or policies on the allegation that the assured's death was caused solely by accident and that the defendant insurers are liable under their respective certificates or policies.

The insurers defend the action denying liability on the ground that the death was directly or indirectly caused or contributed to by intentional self-injury, disease, or natural causes, and thus it was an occurrence expressly excluded from coverage; that the beneficiary failed to notify defendants or their representatives of any accident to the assured as soon as reasonably practical after the occurrence of the event; that the underwriters, Swett & Crawford, were not given immediate notice of the death in writing as is required by the certificates or policies; that a surgical examination and autopsy of the corpse of the assured was made by a private physician-pathologist at the instance of the assured's representatives without due notice having been given to the underwriters or their representatives so as to enable the underwriters to have their medical officers present at the same time, which notice should have been given under the terms of the certificates or policies.

After a trial on the merits of the case, which consumed four full days, judgment was rendered in favor of plaintiff as prayed against each defendant for its respective share of liability under the certificates or policies. All defendants have appealed.

At the time of his death Thomas Reagan, Jr., was 58 years of age and a salesman-proprietor of several companies in Louisiana. The last person to see him alive was his wife. While not a person in the best of health, he was apparently in a good physical shape. A short time before 8 o'clock on the morning of Monday, December 19, 1960, after he had arisen and partaken of coffee, he entered the bathroom on the first floor of his home in order to take a shower in the bathtub. Shortly thereafter, possibly 25 minutes, Reagan's wife opened the shower door on the bathtub and discovered him lying in the tub. Water was still flowing from the showerhead and Reagan's head or hand was resting over the drain and there was water in the tub. Mrs. Reagan, after cutting off the water, ran outside calling for help. Getting no response, she telephoned Mr. Lionel Favret, a neighbor, who responded to the call by rushing to the Reagan home where he observed the body of the assured, apparently lifeless, with the upper part of his body a deep purplish-blue (cyanosis), lying in the tub stomach down, legs bent at the knees toward the wall side of the tub. It might be mentioned that the assured was a large man, about 6 feet tall, weighing about 210 pounds. Mr. Favret and Mrs. Reagan experienced difficulty in removing the body from the tub. To accomplish this feat, it was necessary to rip out one of the sliding shower doors and then pull the body up and roll it over the side of the tub into Mr. Favret's lap and then to the floor. Mr. Favret then commenced vigorous artificial respiration by rib-cage pressure for about 15 minutes until the police arrived. There was no sign of life.

Dr. Nicholas Chetta, the Coroner of the Parish of Orleans, lived next door to the Reagan home, and soon after the discovery of the body, Mrs. Chetta was notified thereof, Dr. Chetta at the time being on the way to his office. Mrs. Chetta contacted the coroner just as he was arriving at his office and informed him that Reagan had suffered a 'heart attack.' Dr. Chetta dispatched two police crash truck officers and a crash truck to the Reagan home, and when the coroner reached there, these officers had begun their efforts to administer oxygen with a resuscitator. Dr. Chetta noted that the resuscitator mechanism was popping, which was an indication to him that no oxygen was getting through Reagan's windpipe to the lungs. We are told that such a condition frequently occurs in persons who have died because of heart attacks or from being asphyxiated, and Dr. Chetta's initial belief was that Reagan had died of a heart attack.

Within the hour after Reagan's death the plaintiff telephoned the family lawyer, who had a general familiarity with the assured's affairs and knew that the assured had a number of life insurance policies, some of which provided for double indemnity in case of accidental death, but the attorney seems not to have been aware at the time of the existence of the two accident policies which are the predicate of this suit. The attorney contacted by telephone Dr. Charles Dunlap, a pathologist of the Tulane Medical School, but he did not advise any representative of the insurers that he was doing or had done this. He employed Dr. Dunlap and instructed him to go to the morgue and attend the autopsy which was scheduled to be performed that morning by the coroner and his pathologist, Dr. Monroe S. Samuels. Upon Dr. Dunlap's arrival at the morgue, he learned that the coroner's autopsy had been completed and that Reagan's body had been transported to a funeral parlor for embalming and burial. Dr. Dunlap notified the attorney of this and following the attorney's instructions, he proceeded to the funeral parlor where the body had already been sewn up. He then reopened various parts of the anatomy, examined some organs, and took one piece of the prostate gland and made sections thereof for microscopic study. He took no other tissues. At the time Dr. Dunlap found nothing which was indicative that death was caused or contributed to by accident. However, he appears to have continued an active interest in the case and thereafter consulted, from time to time, with the coroner.

Plaintiff for some years had been a chronic alcoholic and the official autopsy revealed a number of abnormal conditions. The examination of the larynx showed an antemortem condition characterized by inflammatory cells or laryngeal edema and Dr. Milton Helpern, a physician from New York, called as an expert witness on behalf of the defendants, stated that this condition was sufficient to close off the air passages and cause death. According to Dr. Helpern, laryngeal edema is a swelling of the mucous membrane, the lining of the larynx and also the tissues which constitute the bands which are called the vocal cords. There was no evidence or indication of trauma to the larynx.

As a result of the autopsy performed by Dr. Samuels in the presence of Dr. Chetta on the day Reagan came to his death, the following 'Final Diagnoses' were listed as conditions found in the deceased's body:

1. Laryngeal edema.

2. Fibrous myocardial scar at apex of left ventricle.

3. Fatty liver.

4. Chronic cholecystitis and cholelithiasis.

5. Congenital absence of left kidney.

6. Diverticuli of colon.

7. Fibrous adhesions over left lung.

Some days later, following preparation and examination of microscopic slides of random sections of lung tissue, the following was added:

8. Bone marrow and fat embolism to lungs.

The conditions numbered 4, 5, 6 and 7 may be disregarded as they are of no relevancy and shed no light on the cause of death. The conditions numbered 1, 2, 3 and 8 are respectively either recognized by some of the experts as causes of sudden death or explanations for otherwise unexplained sudden deaths. Before delving into an analysis and evaluation of the conflicting medical testimony before the court as to what the experts thought caused Reagan's death, we think it proper to pass on the other defenses raised by the defendant, i.e., whether proper notice of the accident had been given as provided in the certificates or policies and whether the insurers are absolved from liability because the surgical examinations or autopsies of the body of the assured were made without notice having been given to the underwriters so as to enable them to have medical experts present at the time.

The insuring certificates or policies provide under Paragraph 'I,' Subdivision 1, as follows:

'In the event of death immediate notice must be sent to Underwriters or Sweet & Crawford.'

Of course, the above being a condition of the certificates or policies and a prerequisite to recovery thereunder, it was encumbent upon the plaintiff to establish that said provision was reasonably complied with by him, or that the defendants otherwise had sufficient notice of the occurrence, or that under the circumstances formal notice was unnecessary.

First, let us say that in Louisiana the word 'immediate,' when used respecting notices required by...