Simoneau. v. Prudential Ins. Co. of America

• Decision Date: 01 June 1938
• Parties: SIMONEAU et al. v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New Hampshire Supreme Court

200 A. 385

SIMONEAU et al.

v. PRUDENTIAL INS. CO. OF AMERICA.

Supreme Court of New Hampshire. Hillsborough.

June 1, 1938.

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Assumpsit by Laura and Jeremie Simoneau against the Prudential Insurance Company of America on a policy of life insurance, for the recovery of an additional benefit payable in event of death by accidental means. Transferred on defendant's exceptions to denial of its motions for a nonsuit at the close of the plaintiff's evidence and for a directed verdict at the close of all the evidence.

Judgment on verdict for plaintiff.

Assumpsit upon a policy of insurance upon the life of Remi Simoneau, payable to the plaintiffs as beneficiaries. The policy was in full force at the time of the death of the insured, which occurred on June 13, 1935. The face amount of the insurance, $5,000 has been paid. This action is for the recovery of an additional death benefit of $5,000 payable in the event of death by accidental means.

Trial by jury resulted in a verdict for the plaintiffs. At the close of the plaintiffs' evidence the defendant moved for a nonsuit, and at the close of all the evidence for a directed verdict in its favor. Both motions were denied, subject to the defendant's exceptions, and these exceptions raise the only question presented. Transferred by Lorimer, J. The facts are stated in the opinion.

Emile Lemelin and Ernest R. D'Amours, both of Manchester, for plaintiffs. Thorp & Branch, of Manchester (Fred'k W. Branch, of Manchester, orally), for defendant.

PAGE, Justice.

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The insured was employed at night in a garage at Manchester, but was permitted to sleep on the premises after midnight, unless he had calls for work. It does not appear whether his sleep was interrupted on the night of June 12. He returned home at half past seven on the morning of the 13th, attended church, went to bed at about 11, and was awakened at about 1:45 in the afternoon when two friends called to accompany him to Hampton Beach. Upon the view most favorable to the plaintiffs, the insured was not suffering from fatigue when he left home or when he entered the water after arrival at the beach.

For about a half hour after getting to the beach, Simoneau and his friends, in their bathing suits, played "catch" with a tennis ball. Then the ball was thrown out into the sea, some 200 feet. One of the insured's companions started to swim out for the ball but turned back after going part way. Simoneau, who had not before entered the water, went in and swam out to the ball.

The water was not uncommonly rough. Its temperature was 54 degrees, cold, but not findably excessively so for the time and place. Simoneau was twenty-five years old, a very strong man, in apparently good health and had never complained of illness. He was a powerful swimmer. He swam strongly to the ball, retrieved it and returned, swimming with equal strength half or two-thirds of the way to shore. Then, without any struggle that was observed, or any outcry that was heard, he disappeared in the water and was not again seen alive. About fifteen minutes after his disappearance, his body was located on the bottom of the sea and brought to shore. Attempts at resuscitation failed, and he was pronounced dead by physicians. The embalmer drew from the insured's lungs and stomach a large quantity of water.

The crucial issue presented by the examination of the witnesses and the argument to the jury in behalf of the defendant was entirely simple and depended mainly upon conflicting expert medical opinion as to the immediate cause of death. Basing its claim upon testimony of a witness it produced, which might have been rejected by the jury, the defendant argued that Simoneau ceased to swim, turned upon his back and floated quietly for about a minute. Relying upon medical opinion, which the jury were also at liberty to reject, that the cause of death was heart disease, the defendant argued that "he lay over on his back, and while lying there, the burden on his heart was so great, too great for him to go on, and he simply died then and there and sank." Instead of this theory of floating, followed by death from heart disease, ending in sinking, the plaintiffs urged on the jury, from the opening of the trial, the view that the sinking happened first and was followed by drowning. The issue between these two views was clearly stated by the court to be the matter for decision both when the jury were impaneled and when the final instructions were given. The verdict established as fact the sequence urged by the plaintiffs.

The question thus presented is one of causation. The policy insured against death "as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body." The rest of the accident clause is not material here. The words "accidental means" in such a contract require that the cause of the injury shall be accidental. If such a cause be lacking, recovery will be denied. McGinley v. Insurance Company, 88 N.H. 108, 184 A. 593.

Since the decision in 1861 of Trew v. Company, 6 Hurl. & N. 839, it appears never to have been doubted that drowning (asphyxiation in the water) is caused by external and violent means, or that it may be the result of accident. The defendant does not attempt to take a contrary position. It is bound by the authorities and the reference to drowning in its contract to the general proposition above stated. It however urges that the means of drowning in this instance were not accidental, that the voluntary action of the insured was the cause of the injury that produced death, and that volition deprived the means of accidental character. For authority the defendant relies chiefly upon McGinley v. Insurance Company, supra, and the two principal cases upon which we based that decision, United States, etc., Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60, and Landress v. Insurance Company, 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382.

In the McGinley Case the insured voluntarily drank "splits", a mixture of alcohol and ginger ale, in such quantities as to cause acute alcoholism and death. We denied recovery, since the circumstances were such that no reasonable man could say that the means, the taking of alcohol into the stomach, were accidental.

In the Barry Case the insured voluntarily jumped from a platform to the ground, a distance of four or five feet. He was strong and in good physical condition. When he alighted he was injured in such manner as to suffer a stricture of the duodenum from which he died. The jury were told in substance that the means was the jumping, but that they might inquire whether there was "anything accidental, unforeseen, involuntary, unexpected" (page 759) in the act of jumping between the time the deceased left the platform and the time he alighted on the ground. The term "accidental" was defined as meaning "'happening by chance; unexpectedly taking place; not according to the usual course of things;' or not as expected. In other words, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, then, I suppose, it cannot be called a result effected by accidental means."

The Supreme Court sustained the charge and the verdict for the plaintiff. "The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed, not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not." The facts that the insured was in good health, that the height from which he jumped was only four or five feet, and that the two other men landed safely, were "all the evidence." There was no direct evidence of what accidental means intervened to cause the injury, leaving the voluntary act of jumping colorless as to cause. But the jury were permitted to infer such a means from "all the evidence."

The Landress Case is rather peculiar to itself. It came up entirely on the pleadings. The plaintiff alleged, as the Court viewed it, no more than that the insured, being in good health, went golfing under such conditions of weather as he had before met with safety, and suffered sunstroke. There was no allegation, as there was allegation and proof in the Barry Case, that some accidental means intervened. There was, therefore, no case for the jury. The decision rests on a narrow, technical ground. For this and another reason later to be mentioned, it cannot help the defendant.

It becomes at once apparent that there are some cases where the voluntary act is proximately causal and therefore nonaccidental; whereas there are other cases where the facts justify the conclusion that there has intervened between volition and injury some accidental means which deprives the voluntary act of character as proximate cause or makes it no more than the occasion for the injury. The inquiry therefore is whether some method is to be found which will determine when...