Reynolds v. John Hancock Life Ins. Co., 534

• Decision Date: 05 May 1953
• Docket Number: No. 534,534
• Citation: 97 A.2d 121,117 Vt. 541
• Parties: REYNOLDS v. JOHN HANCOCK LIFE INS. CO.
• Court: Vermont Supreme Court

Page 121

97 A.2d 121

117 Vt. 541

REYNOLDS v. JOHN HANCOCK LIFE INS. CO.

No. 534.

Supreme Court of Vermont.

May 5, 1953.

Carl S. Gregg and P. C. Warner, St. Albans, for plaintiff.

Sylvester & Ready, St. Albans, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY and CUSHING, JJ. and HUGHES, Supr. J.

JEFFORDS, Justice.

This is an action of contract to recover for accidental death under a double indemnity provision in a life insurance policy which provided that the defendant, subject to the conditions and exceptions and exclusions therein set forth, upon receipt at its home office of due proof on its prescribed forms, directly and affirmatively showing that the death of the insured was caused directly, independently and exclusively of all other causes by a bodily injury sustained solely by external, violent and accidental means and evidenced by a visible wound or contusion, unless the death resulted from drowning, would pay a certain sum to the beneficiary.

The case was tried by jury with a resulting verdict and judgment for the plaintiff and it is here on various exceptions of the defendant.

On the evening of May 11, 1951, the insured left his home to go fishing. When he had not returned the next morning a search was made and his body was found in the waters of a marsh adjacent to Lake Champlain and separated therefrom by a road. Insured's head was towards the lake and his body was on the shoulder of the road toward the side of the marsh. The water was four or five feet deep at the feet and about two feet deep at his head and ten feet back from this latter point it was about ten feet deep. There were weeds and underbrush at this location but the feet and legs were not entangled. Insured's boat was nearby. In it was an unlighted lantern and fishing tackle, apparently unused. The deceased had on hip boots.

The body was removed to an undertaking establishment. Rigor mortis had set in by that time. There were no marks on the body. About one and one half quarts of water were found in the lungs. No autopsy was performed.

The insured was a large strong man forty years of age. He was an experienced fisherman, a good swimmer, and steadily employed at the time of his death. During his life he had had only minor illnesses.

A short time after the death an agent of the defendant called on the plaintiff beneficiary. He gave her a form of the defendant for proof of death. She signed this form and the statements therein called for were set forth either by this agent or another agent of the company, apparently superior to the former. One of the statements so made was that the cause of death was 'Drowned.' The agent, with the approval of the plaintiff, then procured on a company form the 'Attending Physician's Statement' from Doctor Dugan of Swanton. In this statement the disease or condition directly leading to death is stated to have been 'Accidental drowning.' The antecedent cause is stated to have been 'Probable coronary occlusion.' The agent then procured the 'Standard Certificate of Death' required by law to be filed. This certificate was signed by Doctor Dugan with the same statements as to direct and antecedent causes as stated by him before. The agent took from the plaintiff at the time of his call the two policies here sued upon. In about three weeks he returned and gave her two checks covering payments for the single benefits under the policies. Attached to the checks was a note saying that if she was entitled to any more the company would be glad to settle. This note was retained by the agent.

On September 29, 1951, the plaintiff, not having heard from the defendant, wrote a letter to it stating that her husband had 'died as a result of accidental drowning'. She called the defendant's attention to the policies by number, stating that they contained the accidental death benefit provision. She said that so far she had received only the face amount of the policies and asked when she might expect the accidental death benefit payments. She asked if it did not think she had waited long enough.

The defendant replied to this letter on October 9, 1951, stating, in substance, that after a very careful investigation it had concluded that the death was not the result solely of accidental means as provided by the terms of the policies but according to its information the death was contributed to by a coronary occlusion which does not meet the requirements of accidental death benefits. The writer stated that this decision had been communicated to its Burlington office on August 14 and expressed surprise that the plaintiff had not been notified of it. The letter concludes with the statement that its investigation was carefully made but if the claimant feels there is material evidence which the company should consider not yet presented which would support her claim that the company would welcome the opportunity to review such evidence.

The plaintiff replied to this letter and payment not having been made brought this suit.

The defendant moved for a directed verdict and also that the verdict be set aside. The grounds of these motions as here briefed are substantially the same. They are, in effect, that the plaintiff failed to sustain her burden of proving that the death was caused from drowning alone, or in the words of the policies, by drowning 'directly, independently, and exclusively of all other causes.' There can be no doubt that the plaintiff had this burden. Jacobs v. Loyal Protective Ins. Co., 97 Vt. 516, 521, 124 A. 848. The question of whether she has sustained it must be answered by a review of the medical testimony given at the trial. This testimony, of course, to be viewed in the light most favorable to the plaintiff. It will be considered at the same time on the question of whether a coronary occlusion contributed to the death, as claimed by the defendant.

Dr. H. L. Pierce, who had been the decedent's family physician, testified that the deceased had always had good health and that he had never treated him for any ailment of a coronary nature. That if a person has this ailment it would be very likely that he would have symptoms indicating it. That a coronary occlusion is rare in the younger age group, but there is a possibility. That death from drowning is caused by suffocation with a resulting cyanosis or blueness of the face and body. That he would think a quart of water in the lungs would cause death by drowning.

Dr. McDonald Peggs, basing his statements on testimony he had heard, gave the following pertinent testimony: That the amount of water taken from the lungs of the insured was in and of itself sufficient to cause his death. That in his opinion there was no other cause of death than drowning. That he had no reason for making a diagnosis of a coronary occlusion and had every reason for making one of drowning. That from talking with the attorneys for the plaintiff before trial he had been of the opinion that the death was caused by accidental drowning and that the testimony he had heard had confirmed this opinion.

Dr. R. J. Catlin who was called by the defendant testified that he had had no experience in drowning cases. He had given particular study to the 'heart cardia condition.' He stated that he would feel that coronary occlusion or thrombosis 'probably was the best possibility as a cause of disability at the time in question.' He doubted that the cause of death was drowning. He stated that coronary occlusion occurring in the younger age group, forty years of age, is more apt to result in sudden death than in the older group. But he said that there was nothing in the history of the case of the deceased or in the evidence from which he could draw the conclusion that the insured had a coronary occlusion at the time.

Dr. O. L. Dugan who had examined the body at the undertaking establishment and had made out the attending Physician's Statement and the Standard Certificate of Death, above referred to, stated that he reached certain conclusions as to the cause of death which he set forth in these papers. On cross examination he stated that he arrived at these conclusions because he thought that something must have happened to the deceased to have him drown or fall in the water and the only probable or most likely thing that could have happened to a man of his size, age and apparent health, in his opinion, was a coronary occlusion. Other reasons for his opinion were the position of the arms and the color of the face of the deceased. But he stated that these matters would be equally consistent with drowning alone as the cause of death.

The defendant contends that from the evidence the jury could only have speculated or conjectured as to whether there was an accidental death within the terms of the policies. This is not so. There was substantial evidence from the testimony of doctors Pierce and Peggs, especially the latter, upon which the jury acting reasonably could return a verdict for the plaintiff on this issue. This being so there was no error in denying the motions for a directed verdict or to set aside the verdict. Wellman, Adm'r v. Wales, 98 Vt. 437, 447, 448, 129 A. 317.

The defendant attempts to discredit the opinion of Dr. Peggs to the effect that the cause of death was by accidental drowning alone because it was based on three factors only. At the most, this fact would only go to the weight of his testimony which was for the jury to determine. McClary v. Hubbard, 97 Vt. 222, 242, 122 A. 469.

The defendant also claims that the plaintiff had the duty of establishing that the death did not result 'directly, indirectly, or wholly or partially from any bodily or mental disease or infirmity' and that there is no evidence to show this. The answer to this contention is that these quoted words form one provision included in the Exceptions and Exclusions set forth in the policies and the burden of proof was on the defendant to show that the facts bring the case within the...