Stoffel v. American Family Life Ins. Co.

• Citation: 164 N.W.2d 484,41 Wis.2d 565
• Decision Date: 07 February 1969
• Docket Number: No. 95,95
• Parties: Jerome J. STOFFEL, Respondent, v. AMERICAN FAMILY LIFE INS. CO., a Wis. corporation, Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 484

164 N.W.2d 484

41 Wis.2d 565

Jerome J. STOFFEL, Respondent, v. AMERICAN FAMILY LIFE INS. CO., a Wis. corporation, Appellant.

No. 95.

Supreme Court of Wisconsin.

Feb. 7, 1969.

Colwin & Buslee, Fond du Lac, for appellant.

Weinke & Weinke, Fond du Lac, for respondent.

ROBERT W. HANSEN, Justice.

The insurance policy on which this action is based provides for a double indemnity payment in the event of accidental death. The provision on which recovery is sought reads:

'THE AMERICAN FAMILY LIFE INSURANCE COMPANY * * * HEREBY AGREES, subject to the definitions, conditions and limitations hereinafter provided, that if during the period of coverage hereinafter specified the death of the Insured shall occur as the direct result of bodily injury and independent of all other causes, effected solely through external, violent and accidental means, as evidence by a visible contusion or wound on the exterior of the body, (except in the case of drowning or internal injuries revealed by an autopsy) and the date of occurrence of such injury is not more than one hundred twenty days prior to date of death,

'THE COMPANY WILL PAY * * * the Accidental Death Benefit stated above in addition to the other proceeds of said policy. * * *' The plaintiff-beneficiary contends that the result of the lifting of the wagon constituted an accident, the sole cause of death and covered by the policy. The defendant-insurance company contends that the lifting was not an accident, not the sole cause of death and therefore not covered by the accidental death benefit provisions of the policy.

WAS THE INCIDENT AN ACCIDENT?

Was the internal injury caused by the lifting of the tractor an 'accident?' Is a death resulting from such internal injuries 'accidental' under the terms of this policy?

It is the position of the insurance company that both the means and the result must be unexpected or unanticipated before an 'accident' occurs. Since the insured's attempt to lift the wagon off the tractor wheel was carried out by means or in a way that was intended by the insured, under this view, the injury and death were not the result of an accident at all. Cases from other jurisdictions are cited in support of this position that both the means and result must be unintended and unexpected before an accident can be held to have occurred. Representative of such line of cases, is the one in Massachusetts where the insured sustained injury and died as a result of lifting mortar tubs. The court there denied recovery, holding:

'The injury which it is contended the insured received was the strangulated hernia first disclosed by the surgical operation and later by the autopsy. Its only cause from external means, so far as appears, was the lifting of the mortar tubs. The evidence did not warrant a finding that this lifting of the tubs either was unintentional or at the time was accompanied by any unexpected occurrence. * * * Here the lifting itself was not attended by accident although the consequences to the insured were unforeseen. The case is illustrative of the distinction to be observed between accidental result and accidental cause.' ¹

Plaintiff-beneficiary concedes that in jurisdictions following this line of reasoning, it is not enough that the result alone was unexpected to make the incident an accident. However, he relies upon cases from jurisdictions holding that where injury or death is the unusual, unexpected or unforeseen result of an intentional act, such injury or resultant death is by accidental means, even though there is no proof of mishap, mischance, slip or anything out of the ordinary in the act or event which caused such injury or death. Representative of such line of authority, is the New York State case, written by Justice Benjamin Cardozo, where the insured came to his death as a result of pricking a pimple on his lip, and died from the resultant infection. The court in that case found that the death was effected through accidental means, holding:

'But our point of view in fixing the meaning of this contract, * * * must be that of the average man. * * * Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test--the one that is applied in the common speech of men--is also the test to be applied by courts.' ²

Choosing between the two clearly defined lines of cases on this subject, Wisconsin has elected to follow the 'average man test' in defining the word 'accident' rejecting the narrower definition that requires an unforeseen event as well as an unanticipated result to constitute an accidental happening. This election between two alternative interpretations was made in the Wiger Case where the insured died from carbon monoxide poisoning while he was in an enclosed garage with the motor of his car running. Upholding a jury verdict that death was not suicidal and due to accidental causes, this court held:

'It is our conclusion that the term 'accidental means' must be interpreted according to the usage of the average man. So interpreted we have no doubt that the means of death in this case must be designated as accidental. To eliminate from the definition of 'accidental means' all cases where the injury happened as the natural or foreseeable result of a force or event voluntarily set in motion by the insured may have some scientific justification, but is contrary to the common understanding of the term and tends unfairly to limit such policies to cases where the insured is guilty of no negligence.' ³

Applying the 'average man' definition of accident to the facts of this case, it follows that, if the insured's death was solely caused by the lifting of the heavy wagon off the tractor wheel, the cause of death was accidental within the meaning of the policy, it being the direct and unexpected result of the act or incident involved.

WAS THE ACCIDENT THE SOLE CAUSE OF DEATH?

Was the lifting of the wagon the sole cause of the death of the insured? Did death occur as the direct result of such lifting, independent of all other causes?

Defendant-insurance company contends that the insured would not have died if he did not have the physical flaw, unknown to him, that is known as 'cystic medionecrosis.' This condition, the insurer argues, was a 'but-for' cause of death along with the act of lifting the wagon. If the insured's death was caused, even in part, by such pre-existing physical condition or weakness, defendant argues it should follow that his death was not caused by the accident 'independent of all other causes.'

On this issue of 'sole cause' the trial court gave the following instruction:

'You are instructed that a man insured may be suffering from some disease or physical condition that has weakened his resistance, yet he may be the victim of an accident which is the sole cause of his disability, although disability might have been less likely had he been in better physical condition.

'This question calls for a finding of fact as to whether the disability incurred by the insured, Richard J. Stoffel, in the accident, the alleged accident, of December 4th, 1965, resulted solely from the alleged accident, independent of all other causes. In this connection you are instructed that if a disease or bodily condition exists and an accident occurs, to constitute the accidental means the sole cause of the injury, under policies like the one here in suit, it is not necessary that the injuries or the results thereof would have been as severe as they were had the disease or bodily condition not existed; but it is sufficient if the accidental means would have solely caused some considerable injury had the disease or bodily condition not existed. But if no considerable injury at all would have resulted had the insured, Richard J. Stoffel, not been afflicted with the existing disease or condition, the accidental means cannot be considered as the sole cause of the injury.'

The trial court's instructions follow the case law in this state and elsewhere that, as in the matter of defining 'accident' gives weight to the 'reasonable expectations' of the 'average man' in interpreting 'sole cause' including, for example, the New York State Case where the appellate court held:

"Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.' * * * A distinction, then, is to be drawn between a morbid or abnormal condition of such quality or degree that in its natural and probable development it may be expected to be a source of mischief, * * * and a condition abnormal or unsound when tested by a standard of perfection, yet so remote in its potential mischief that common speech would call it not disease or infirmity, but at most a predisposing tendency.' ⁴

It is clear that Wisconsin has chosen to follow this 'reasonable expectations' test of an 'average man' test in defining the term 'sole cause.' This test draws a sharp distinction between the performance of an everyday act, involving ordinary exertion and performable by a normal person without risk or consequence of serious injury, and the doing of an act that, by itself, could solely cause considerable injury to even a normal person performing it. Thus, where a man with a preexisting heart condition, pulled a boat onto shore, an act that would not have resulted in injury under any circumstances except for his pre-existing heart condition, this court rejected the jury verdict, denied recovery and said:

'From the undisputed evidence in the instant case it is plain that no considerable injury to the insured would have occurred had he not been afflicted, at the time he sustained the injury to his heart, with the heart condition described.' ⁵

However, in a case where the insured had 'certain abnormalities of growth in his spine' this court upheld a jury verdict allowing the insured to...