Semancik v. Continental Casualty Co.

• Decision Date: 12 March 1914
• Docket Number: 237-1913
• Citation: 56 Pa.Super. 392
• Parties: Semancik, Appellant, v. Continental Casualty Company
• Court: Pennsylvania Superior Court

56 Pa.Super. 392

Semancik, Appellant, v. Continental Casualty Company

No. 237-1913

Superior Court of Pennsylvania

March 12, 1914

Argued December 4, 1913 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Northampton Co.-1912, No. 28, for defendant n. o. v. in case of Lizzie Semancik v. Continental Casualty Company.

Assumpsit on a policy of accident insurance. Before Stewart, J.

From the record it appeared that John Semancik, during his lifetime entered into a contract of accident insurance with the defendant company. The policy issued to him by the company contained the following clauses:

" Part I. Insuring Clause for Accident.

" If the Insured, while this policy is in force shall receive personal bodily injury (suicide sane or insane not included) which is effected directly and independently of all other causes through external, violent and purely accidental means, and which causes at once and continuously after the accident total inability to engage in any and every labor or occupation, the Company will pay indemnity for loss of life, limb, limbs, sight or time resulting therefrom.

" Part VI. Special Accident Indemnities.

" A. If sunstroke, freezing or hydrophobia, due in either case to external, violent and accidental means, shall result, independently of all other causes, in the death of the Insured within ninety days from date of exposure or infection, the Company will pay said principal sum as indemnity for loss of life."

The deceased was a section hand employed at the time of his death by a railroad company. He was at work on July 3, 4, 5, 1911, all of which were unusually hot days. On the afternoon of July 5 he complained of being sick, and was advised by his fellow workmen to lie down. He went a short distance away from the place where he was working, and lay down in the shade of some railroad ties. A short time afterwards his fellow workmen went to his side and found that he was dead. A doctor certified that the cause of the death was sunstroke. Two witnesses testified that the deceased was at the time he was working with them in apparently good health. The court gave binding instructions for plaintiff. Verdict for plaintiff for $ 1,115. Subsequently the court entered judgment for defendant n. o. v.

Error assigned was in entering judgment for defendant n. o. v.

Affirmed.

William H. Kirkpatrick, with him Frank P. McCluskey, for appellant. -- Sunstroke is an accident: American Accident Co. v. Reigart, 94 Ky. 547 (23 S.W. 191); Paul v. Travellers Ins. Co., 112 N.Y. 472 (20 N.E. 347); North American Life & Accident Ins. Co. v. Burroughs, 69 Pa. 43; Hey v. Liability, etc., Co., 181 Pa. 220; Burkhard v. Travelers' Ins. Co., 102 Pa. 262; Ismay, Imrie & Co. v. Williamson, L. R. (1908) A.C. 437.

We respectfully submit that if the court has held that sunstroke in ordinary cases is not " external, violent and accidental," then not one of the cases put by the appellee would be covered by the policy. There are certainly cases where the disease is directly produced by some external means, in which the insurance company has been compelled to pay the indemnity: Western Commercial Travelers' Assn. v. Smith, 85 F. 401; Farner v. Massachusetts Mut. Acc. Assn., 219 Pa. 71.

A construction will be avoided, if possible, which will render the instrument frivolous and ineffectual, it being presumed that the parties intended the instrument to have some operation.

M. P. Cornelius, with him Geo. F. Coffin and Manton Maverick, for appellee. -- There can be no recovery under a policy insuring against the result of an injury effected through accidental means, where such injury, although totally unexpected, fortuitous and undesigned, and in that sense accidental, is occasioned by a voluntary act on the part of the insured, executed in an expected and ordinary way, since such injury, though accidental, is not effected through accidental means.

Southard v. Railway Pass. Assur. Co., 34 Conn. 574; hernia from jumping off of car and running without stumbling or falling. Westmoreland v. Pref. Acc. Ins. Co., 75 F. 244; death occasioned by voluntary administration of chloroform in the usual way. Travelers' Ins. Co. v. Selden, 78 F. 285; injury received by running rapidly over rough ground without stumbling or falling. Shanberg v. Fid. & Cas. Co., 158 F. 1; affirming 143 F. 651; injury from carrying one end of heavy door without slipping, stumbling or falling. Hastings v. Travelers' Ins. Co., 190 F. 258; dilation of heart produced by insured voluntarily raising himself up and down in chair by placing hands on arms of chair. Cobb v. Pref. Mut. Acc. Assn., 96 Ga. 818 (22 S.E. 976); blindness, presumably occasioned by walking with heavy grips on hot day, without slipping or falling. Moore v. Ill. Com. Men's Assn., 166 Ill.App. 38; burden on plaintiff to show injury effected through accidental means. Schmid v. Ind. Trav. Ass. Assn., 42 Ind.App. 483 (85 N.E. 1032); paralysis of heart caused by high altitude and unusual strain occasioned by muscular exertion in carrying grip upstairs in rarefied atmosphere. Result of voluntary physical exertion or vicissitudes of climate or atmosphere, although unexpected and unforeseen, not due to accidental means. Carnes v. Iowa State Trav. Men's Assn., 106 Iowa 281 (76 N.W. 683); death from intentionally taking morphine tablets, if insured intends to take amount he does take and misjudges effects, although totally unexpected and unforeseen, not due to an " accidental cause." Feder v. Ia. State Trav. Men's Assn., 107 Iowa 538 (78 N.W. 252); death from rupture of artery from attempt to close window shutters; no evidence that insured fell, slipped, lost balance, failed to catch shutter, etc., or that anything occurred which was not foreseen and planned except the rupture; not due to an " accidental cause." Smouse v. Iowa State Trav. Men's Assn., 118 Iowa 436 (92 N.W. 53); death from rupture of blood vessel in a voluntary attempt to remove night shirt over head, not due to an " accidental cause." Lehman v. Railroad Co., 153 Iowa 118 (133 N.W. 752); appendicitis occasioned from strain while bowing without slipping or falling. Pervangher v. Union Cas. & Surety Co., 85 Miss. 31 (37 So. 461); court intimates in passing on demurrer that injury from voluntary lifting and straining not due to accidental means, but contra if weight fell and struck insured. Appel v. AEtna Life Ins. Co., 83 N.Y.S. 238; affirmed 180 N.Y. 514; appendicitis from riding bicycle over rough ground without fall or collision. Niskern v. Uni. Bro. of C. & J. of America, 87 N.Y.S. 640; disability caused by rupture of blood vessel from voluntary lifting not occasioned by " accidental injuries." Clidero v. Scottish Acc. Ins. Co., England, 29 Scottish Law Repr. 303; insured pulling on stocking felt something give way. Autopsy disclosed colon had fallen out of place, causing death. No evidence of slip or other accidental means. Scarr v. General Acc. Assur. Corp., England (1905), 1 King's Bench, 387; exertion in ejecting drunken man from premises.

Sunstroke was thoroughly considered in Sinclair v. Maritime Pass. Assur. Co., 3 Ellis & Ellis, 478; Dozier v. Fid. & Cas. Co., 46 F. 446; Bryant et al. v. Continental Cas. Co., 145 S.W. 636, and it was held (a) That sunstroke is a disease; (b) that such a disease is not effected by accidental means when it is sustained by an insured when he is doing just what he intends to do in the way intended.

There is no liability under a policy insuring against death caused solely by injuries effected through accidental means where it appears or is contended that the insured died from the disease of sunstroke acquired while going about his usual duties in the ordinary way in the same manner that a man may acquire any of the infinite number of diseases to which human flesh is heir while engaged in his ordinary occupation.

We think it is perhaps permissible to say, although that fact does not appear in the record, that the special sunstroke clause relied upon in the second portion of appellant's argument was inserted to comply with the demand of the insurance commissioners. The appellee company is not chartered or licensed to do the business of life insurance. It had at one time inserted in its policies a clause agreeing to pay for sunstroke without the qualification that such sunstroke must be due to accidental means. The commissioners held that by insuring against sunstroke generally without the qualification just stated, the company would be insuring against death from disease not brought about by accident, which would in effect be doing the business of life insurance. We were, therefore, obliged to modify the sunstroke clause, in order to insure against sunstroke at all, by providing specifically that we would only pay for death from sunstroke effected by accidental means.

The court will not rewrite the contract: Farner v. Mass. Mut. Acc. Assn., 219 Pa. 71; Humphreys v. Benefit Assn., 139 Pa. 214; Hubbard v. Mutual Acc. Assn., 98 F. 930; Hastings v. Travelers' Ins. Co., 190 F. 258.

Before Rice, P. J., Henderson, Orlady, Head and Porter, JJ.

OPINION

HENDERSON, J.

The policy of insurance issued by the defendant to the husband of the plaintiff contained two clauses which determine the extent of the liability of the company and which give rise to the pending dispute. Part 1 provides as follows: " If the insured while this policy is in force shall receive personal bodily injury . . . . which is effected directly and independently of all other causes through external, violent and purely accidental means and which causes at once and continuously after the accident total inability to engage in any and every labor or occupation the company will pay indemnity...