The Maccabees v. Terry

• Decision Date: 31 July 1953
• Citation: 67 So.2d 193
• Parties: THE MACCABEES v. TERRY.
• Court: Florida Supreme Court

Page 193

67 So.2d 193

THE MACCABEES v. TERRY.

Supreme Court of Florida, Division B.

July 31, 1953.

Rehearing Denied Sept. 21, 1953.

Morehead, Forrest, Gotthardt & Orr and F. E. Gotthardt, Miami, for petitioner.

Boyce F. Ezell, Jr., Miami, for respondent.

DREW, Justice.

A petition for constitutional certiorari has been filled in this Court to review an order of the Circuit Court of Dade County affirming a judgment against petitioner in the Civil Court of Record of Dade County on double indemnity provisions of a policy of insurance and awarding attorney's fees under Section 625.08, F.S.A., to beneficiary's counsel.

The bone of contention here as to the first point is that the Circuit Court of Dade County, in affirming the judgment of the Civil Court of Record of said county, 'refused to recognize that the medical testimony which was uncontradicted failed to show that the accused had met an accidental death in accordance with the provisions of the double indemnity agreement' and that, therefore, said Circuit Court had failed to proceed in accordance with the requirements of law.

The provisions of the insurance policy involved here are:

(The Insurer) 'A. Further agrees to pay the beneficiary an additional amount equal to the face amount of the benefit certificate referred to above in the event that said member suffers death as a direct result of bodily injuries effected directly, exclusively and independently of all other causes, through external, violent and accidental means, within ninety days from date of accident, * * *

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'The liability of the Association hereunder is conditioned upon the following: That the member be in good standing as a Life Benefit Member of the Association at time of death; that the certificate be in full force and effect and not running as extended or paid-up protection; that such death or accident shall not result directly or indirectly from: suicide while sane or insane, taking of poison or inhaling of gas, whether voluntary or otherwise, bodily injuries received during a state of war, riot or insurrection, or while the member is violating the penal laws of the land constituting a felony, or as a result or penalty of such violation, or while the member is riding or being in or on any aeronautical or submarine device or conveyance or participating in any operation thereof, except as a fare-paying passenger on licensed aircraft, piloted by a licensed pilot in regularly scheduled flight; or from illness, disease, or from physical or mental infirmity, or while member is outside of the limits of the continental United States or Canada. Except in case of drowning or internal injuries revealed by an autopsy, the injuries must be evidenced by a visible contusion or wound on the exterior of the body.' (Emphasis added.)

At the time of his death, the deceased was a carpenter by trade and had been engaged in such occupation for about 13 years. He was a vigorous man and had been in excellent health for many years. The testimony revealed that while he was not constantly engaged in 'heavy and strenuous work' he frequently did such work in his trade. The undisputed evidence shows that death resulted from a ruptured aneurysm in the brain brought about by a strain.

There is little, if any, dispute as to the facts surrounding the injury. The deceased was engaged in replacing floor joists which had been broken as the result of a wall blowing over. Such work was not the usual work required of a carpenter and entailed working under the house in a very confined and cramped position and required a very strong man to utilize all his strength to get the new joists in position. In fact, the Negro helper assigned to help the deceased was picked because he was the strongest man on the job. What happened to the deceased is well summarized by the testimony of the Negro helper in the following questions and answers.

'Q. Did you notice anything unusual about Mr. Terry as he was straining under the building? A. Yes, sir, I noticed it.

'Q. What was that Johnny? A. I looked at him when we first go underneath there, and he was red when he come up to get the water. He turned a different color. He eyes look funny. 'Mr. Terry,' I say, 'It is hot underneath there,' and he say, 'When I come out I ain't going back down there.' I say, 'Yes, sir.' He drank one little dipper of water.

'Q. At any time while you were working with him underneath the building did he make any statement or complaints about his feeling? A. Yes, sir.

'Q. What, if anything, did he say? A. Well, he was under there, he told me, he said, 'Johnny, my head hurt.' I said, 'You want me to go and get you a Stanback?' and he said, 'No.' That was all he said. He just told me his head was hurting.

'Q. Did you suffer any yourself. Did you suffer any ill effects as a result of that work? A. I didn't right then but the next morning I could feel it. Everybody said, 'You must be sick, Johnny,' and I said, 'No, sir, I got overheated.' It didn't worry me right then.'

On the question of the cause of death, the following is the pertinent testimony of Dr. Richard E. Strain, respondent's witness, on cross-examination:

'Q. Doctor, as I understand it, an aneurysm is a congenital condition, a weak spot in the blood vessel? A. Yes, sir.

'Q. And the rupture is the breaking of it? A. Yes.

'Q. Doctor, would I be correct in saying that the two of them, the two conditions I am referring to, the weakened condition and the strain, the weakened blood vessel or aneurysm or strain, would I be correct in saying that the two of them had to co-exist and work together causing the death of this man? A. I believe that is a correct statement, that he had to have a congenital weakness and a precipitating strain in this instance.

'Q. Now, then, am I correct in stating that the strain could not be said to have caused his death solely, exclusively and independently of all other causes? A. Well, I think it was a precipitating factor here. If he had not had a weakness, a congenital weakness, I don't believe this strain would have caused his death. It is like a man who develops a hernia.

'Q. In other words, would I be correct in saying that the strain did not cause his death solely, exclusively and independently of all other causes? A. He had to have a congenital weakness.

'Q. It would not be solely, exclusively and independently? A. In my opinion.

'Q. That would be your opinion? A. Yes, sir.

'Q. Doctor, this strain is not what you could call an injury effected solely through external, violent and accidental means, which injury is evidenced by a visible contusion or wound on the exterior of the body, is it? A. No; there was no external mark of violence on his body. He was not struck by something from the outside. This all happened in his brain.

'Q. And from the history that you got, there was nothing accidental about what happened, was there? A. I suppose that would depend upon what you mean by accidental. We call these a cerebral vascular accident. That means there was, or has been, a sudden, catastrophic happening in the brain, and from that point of view we use the term 'accident.'

'Q. There was no external violence? A. No, there was no external violence.

'Q. And this strain did not cause any visible contusion or wound on the exterior of the body? A. No, sir.

'Q. And there was nothing in the autopsy that revealed any such thing? A. No, only the operative wound which, of course, was not healed.

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'Q. But not the sole and exclusive cause? A. Not the sole and exclusive cause; that is correct.

'Q. An aneurysm is not a normal condition, it it? A. No, sir, we would consider it an abnormal congenital condition, and a strain such as in passing a stool or coughing or doing any kind of heavy thing might be sufficient to bring on a rupture and such an aneurysm may rupture without any noticeable strain...