Trau v. Preferred Acci. Ins. Co. of New York

• Decision Date: 29 January 1930
• Docket Number: 134-1929
• Citation: 98 Pa.Super. 89
• Parties: Trau, Appellant, v. The Preferred Accident Ins. Co. of N.Y
• Court: Pennsylvania Superior Court

98 Pa.Super. 89

Trau, Appellant, v. The Preferred Accident Ins. Co. of N.Y

No. 134-1929

Superior Court of Pennsylvania

January 29, 1930

Argued October 14, 1929

Appeal by plaintiff from judgment of M. C., Philadelphia County-1926, No. 186, in the case of Philip A. Trau v. The Preferred Accident Insurance Company of New York, a corporation.

Assumpsit upon an accident insurance policy. Before Crane, J., without a jury.

The facts are stated in the opinion of the Superior Court.

The court found in favor of the plaintiff in the sum of $ 318.60. Subsequently on motion it entered judgment for defendant non obstante veredicto. Plaintiff appealed.

Error assigned was the judgment of the court.

Affirmed.

A Carson Simpson, and with him Charles M. Willits, for appellant. Argued-- The case falls within the principle of those relating to external, violent and accidental means Eby v. Travelers Ins. Co., 258 Pa. 525; Bloom v Brotherhood Accident Co., 85 Pa.Super. 398; Lane v. Horn & Hardart Baking Co., 261 Pa. 329; Paul v. Insurance Co., 112 N.Y. 472; Western Commercial Traveler's Assn. v. Smith, 85 F. 401.

Harry S. Ambler, Jr., and with him Harry A. Talbot and Frank R. Ambler, for appellee. -- The injury was not caused by accidental means: Semancik v. Continental Casualty Co., 56 Pa.Super. 392; Southard v. Railway Passengers Assurance Co., 34 Conn. 574; Shanberg v. Fidelity & Casualty Co. of New York, 158 F. 1; Maryland Casualty Co. v. Spitz, 246 F. 817.

Before Porter, P. J., Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.

OPINION

KELLER, J.

The defendant company's policy insured the plaintiff " against the effect of bodily injury . . . . caused solely by external, violent and accidental means." While it was in force, plaintiff strapped a trunk. As he was pulling the strap tight he felt a sliding or pinching sensation in his left groin, which, a day or two later, he found to have developed into a rupture, requiring an operation.

He brought suit on the policy and recovered a verdict. The court subsequently entered judgment for the defendant non obstante veredicto, and the plaintiff appealed.

">In Pollock v. U.S. Accident Assn., 102 Pa. 230, our Supreme Court in construing the same phrase said: " The object of the company is to insure against bodily injuries produced in a certain manner specified, that is, caused by external, violent and accidental means. Not injuries caused by any one of these means, but by all of them combined." Notwithstanding the suggestion of appellant's counsel that the Supreme Court in Pickett v. Pacific Mut. Life Ins. Co., 144 Pa. 79, " felt it necessary to explain the peculiar language used in that [Pollock] opinion," we do not understand that it has, in any way, weakened the force of its statement that a policy insuring against bodily injury caused by external, violent and accidental means will not be held to indemnify against injuries caused by only one of these means, but is limited to injuries caused by all of them combined; the adjectives modifying " means" are not used disjunctively, but conjunctively; and the bodily injuries relied on must be shown to have been caused by external means, by violent means, and by accidental means. We have no right to refine away any of these words in the policy. They are used in the sense ordinarily given them in this connection. " External" as used in the policy is equivalent to " outward; " " violent" to " not natural, abnormal," -- as a " violent death; " " accidental" to " happening by chance or unexpectedly." To secure indemnity under the policy the injury must have been caused by means which were outward, not natural, and which happened by chance or unexpectedly. Did the plaintiff's injury come within these requirements?

It may be admitted, for the purposes of this case, that the injury was an accidental one, that is, that it happened by chance or unexpectedly; but that is not the test. Was it caused by means which were external, not natural, and which happened by chance or unexpectedly? There is no decision in the appellate courts of this Commonwealth squarely on the point, and the decisions in other jurisdictions are not uniform, but we think the weight of authority and the sounder reasoning are opposed to the appellant's claim.

It is established that the exciting cause of an acquired, as distinguished from a congenital, hernia is generally some strain or over-exertion, " as in lifting a heavy weight, jumping off a high wall, straining (as in difficult micturition), constipation, or excessive coughing. The pressure of the diaphragm above and the abdominal wall in front acting on the abdominal viscera causes a protrusion at the weakest point" : 13 Ency. Brit. p. 372 (11th Ed.). The learned counsel for the appellant, in his able and interesting argument, admitted that the hernia was not caused by the trunk strap, or even by the process of strapping the trunk, apart from the internal strain which the insured placed on his abdominal muscles while engaged in that chore. He did not slip or fall or do anything that he had not intended to do, but the results were more than he expected. He did intend to tense his muscles, but he did not purpose doing so to such a degree as to cause a hernia. To us the situation seems no different than it would have been had the insured suffered a hernia while straining in micturition or at stool, without any intervening circumstances. There he would have intended to strain the abdominal muscles in furtherance of his purpose, but not to the extent of causing a rupture. The hernia would have been accidental but it would not have been caused by external and accidental means. The distinction was drawn by the late Judge Henderson in Semancik v. Continental Casualty Co., 56 Pa.Super. 392, where recovery was denied under a similar policy for death by sunstroke, where no concurring accident was shown. He said: " Voluntary exposure to heat or cold with a knowledge of the existing conditions, and action by the insured in an intended and ordinary manner under such circumstances, resulting in bodily injury does not present a state of facts on which the court can with confidence declare that such injury was effected by accidental means although the injury was accidental in that it was not designed or anticipated." The same thought was well expressed by the Circuit Court of Appeals, 5th Circuit, in Carswell v. Railway Mail Assn., 8 F.2d 612, where the insured died from dilation of the heart caused by his exertion in cranking an automobile: " Where one voluntarily undergoes physical exertion and nothing unexpected or unintended happens while he is doing so, the fact that such exertion unintentionally and unexpectedly causes injury, does not make the means whereby such injury is caused, namely, the voluntary exertion, accidental. The physical injury caused by voluntary exertion or strain, which is unaccompanied by anything which is involuntary, unforseen and unusual is not a result of 'external, violent and accidental means' within the meaning of the instrument sued on." Judge John B. McPherson, when circuit judge of the 3d Circuit, Circuit Court of Appeals, stated the general principle in somewhat different terms, inadvertently confusing " accidental injury" with " injury by accidental means," in Preferred Accident Ins. Co. v. Patterson, 213 F. 595, as follows: " We agree that when a man is injured while doing merely what he intends to do, he is not injured by an accident, unless the course of his action has been interrupted or deflected by some unforeseen and unintended happening. To illustrate from the facts before us: Since the deceased was attempting to start the engine of his car by turning the crank whatever injury he might sustain from the ordinary strain of that operation, would properly be regarded as a result of what he intended to do, and therefore would not be regarded as accidental. But we can hardly suppose that he intended to slip and fall in the course of the operation, and therefore if he did slip and fall and sustained injury as the direct result thereof, the happening would be unforeseen and unintended and the injury would be accidental."

So in this case, had the insured while strapping the trunk slipped and fallen, causing the hernia in question, the injury would have been caused by external, violent and accidental means; but when, as here, the operation of strapping the trunk is not interrupted or deflected by some outward happening, but in the exercise of usual and ordinary force results in an unexpected internal strain producing rupture, the occurrence though accidental would not amount to any injury caused by external and accidental means. " A means is not accidental when employed intentionally, though it produces a result not expected or intended" : Maryland Casualty Co. v. Spitz, 246 F. 817, 818 (John B. McPherson, J.). See also Hesse v. Traveler's Ins. Co., 299 Pa. 125.

In the review of the authorities following we shall not include deaths by accidental drowning, by poison accidentally taken by accidental inhalation of gas, or by snake bite, for all of them come squarely within the combination of external, violent and accidental means. The water, poison, gas, or snake venom causing death or injury were all external or outward means, though their injurious effect may have been internal. The meaning of the policy is that the means which caused the injury must be external -- not that the injury must be external: American Accident Co. v. Reigart, 23 S.W. 191, 192 (Ky.). They were likewise violent (not natural) and accidental. The same may be said of death following a fit of violent coughing and choking induced by toothbrush bristles lodging in one's throat, (Eby v. Travelers Ins. Co.,...