Wheeler v. Title Guar. & Cas. Co. of Am.

• Decision Date: 05 December 1933
• Docket Number: No. 45.,45.
• Citation: 251 N.W. 408,265 Mich. 296
• Court: Michigan Supreme Court
• Parties: WHEELER v. TITLE GUARANTY & CASUALTY CO. OF AMERICA.

265 Mich. 296

251 N.W. 408

WHEELER

v.TITLE GUARANTY & CASUALTY CO. OF AMERICA.

No. 45.

Supreme Court of Michigan.

Dec. 5, 1933.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, Judge.

Action by Warren H. Wheeler against Title Guaranty & Casualty Company of America. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.Baillie & Murchie, of Detroit, and Robert P. Scholte, of Grand Rapids (Thomas G. Baillie, of Detroit, of counsel), for appellant.

Linsey, Shivel & Phelps, of Grand Rapids, for appellee.

SHARPE, Justice.

The facts in this case are stipulated. On April 28, 1931, the defendant company issued a policy of insurance to Frankiedell Wheeler, of the city of Grand Rapids, in which it agreed to pay to the beneficiary, the plaintiff herein (her husband), the sum of $1,000 in the event of her death ‘due to Accidental Bodily Injuries.’ In October, 1932, the insured was suffering from a cold in her head and consulted Dr. Oliver, who discovered that her tonsils were affected and advised their removal. On November 1st she went to his office to have them removed, and in preparation therefor the doctor painted the affected area with, and injected into it the usual amount of an anaesthetic solution known as nupercaine. After waiting until the organs of the throat were properly deadened to pain, he began the operation, and, when he had partially completed it, the insured collapsed and died within a few minutes thereafter.

The doctor testified that the cause of her death ‘was a drug reaction from the anesthetic’; that ‘she had an idiosyncrasy to the nupercaine’; that the removal of her tonsils had nothing to do with her death, which was caused by the administration of the nupercaine ‘and her hypersusceptibility to this particular drug * * * which could not have been known to any practicing physician before it was given.’

On trial by the court without a jury, he found that the death of the insured was ‘due to accidental bodily injuries,’ and entered judgment for the plaintiff, from which the defendant has taken this appeal.

Accidental injury is defined in the policy as follows: “Accidental injury' as used in this policy means bodily injury suffered while this policy is in force and which is effected solely and independently of all other causes through accidental means.'

What are ‘accidental injuries,’ as thus defined, has been the subject of much litigation. In 1 C. J. p. 427, it is said: ‘Where the effect is not the natural and probable consequence of the means which produce it-an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce, and which he cannot be charged with a design of producing-it is produced by accidental means.’

A quite similar statement will be found in 14 R. C. L. p. 1239.

Counsel for the plaintiff rely on our holdings in Johnson v. Fidelity & Casualty Co., 184 Mich. 406, 151 N. W. 593, L. R. A. 1916A, 475, and Ashley v. Life Insurance Co., 241 Mich. 441, 217 N. W. 27, 58 A. L. R. 1208. The distinction between those cases and that now before us lies in the fact that the act of a third person is here involved.

In United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 762, 33 L. Ed. 60, quoted from with approval in Ashley v. Life Ins. Co., supra, the court said: ‘That, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but, that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means.’

The latter part of this quotation is peculiarly applicable to the facts here presented. The act which here preceded the death of the insured was the administering of the anaesthetic to her by the doctor, and as a result thereof, owing to her hypersusceptibility to this drug, an unforeseen, unexpected, and unusual occurrence-her death-followed. Clearly, it was caused by accidental means as thus defined.

A case on all fours with...