Wilson v. New York Life Ins. Co.

• Citation: 82 F. Supp. 292
• Decision Date: 02 February 1949
• Docket Number: No. 1463.,1463.
• Parties: WILSON v. NEW YORK LIFE INS. CO.
• Court: U.S. District Court — District of Idaho

82 F. Supp. 292

WILSON v. NEW YORK LIFE INS. CO.

No. 1463.

United States District Court D. Idaho, E. D.

February 2, 1949.

Ben W. Davis, of Pocatello, Idaho, for plaintiff.

A. L. Merrill, of Pocatello, Idaho, and J. L. Eberle, of Boise, Idaho, for defendant.

CLARK, District Judge.

The plaintiff Cecelia J. Wilson brought this action to recover for the alleged accidental death of her husband, Harry Wilson.

Harry Wilson, the deceased was a resident of the State of Idaho at the time the defendant New York Life Insurance Company, a corporation of New York, on or about the 19th day of May 1928, issued its certain policy of insurance, being policy No. 10255251, the policy insuring the insured for $5,000 payable to his beneficiary upon proof of his death and $10,000 or double the face of the policy if death resulted from accident. This action is for the recovery of the double indemnity of $5,000 for the alleged accidental death.

The policy provided for double indemnity if "the death of the Insured resulted directly and independently of all other causes from bodily injury affected solely through external, violent and accidental means * * *". "Double indemnity shall not be payable if the insured's death resulted * * * directly or indirectly from illness or diseases or from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury * * *"

The insured died on the 8th day of April, 1947 from "acute pulmonary embolism". This is defined at page 12 of the transcript of the testimony, by Doctor O. F. Call, attending physician at the time of Mr. Wilson's death, as a "foreign substance or piece of a clot flowing in the blood stream which goes through the heart, through the pulmonary artery to such a place that it can't go any farther and lodges in the pulmonary artery or branch of it. It can be a clot of blood, a fatty or foreign substance."

The circumstances preceding Mr. Wilson's death as disclosed by the evidence, are as follows: He was in ordinary good health of the average man; he was about sixty years of age; he was troubled to some extent by high blood pressure. He had undergone an operation some years ago for a bowel obstruction; the record does not disclose when this operation was performed but it was prior to an operation for hernia that was performed some four years prior to his death. On the morning of April 7, 1947 he was again operated upon for recurrent inguinal hernia. Immediately following the operation he was returned to his room in the hospital in apparently good condition. After the operation on the morning of April 7, opiates and sedatives were administered, which were a part of standard and recognized treatment. The opiates so administered caused deep heavy snoring, choking and coughing and although Mr. Wilson was a heavy snorer when sleeping under natural conditions, this medication caused the choking and coughing and snoring to become more violent, causing the pulmonary embolism from which death resulted at 5 o'clock A.M. April 8, 1947, about twenty hours after the operation. The result of the administration of the opiates was entirely unforeseen and unexpected; there was nothing to indicate, at the time of their administration, that he would develop this extraordinary condition, snoring or heavy breathing and the coughing and choking causing the embolism. Doctor Call testified that in his experience in operations this condition that developed in reference to the snoring, choking and breathing was most extraordinary and not to be expected or foreseen; the record discloses the following questions and answers in the testimony of Doctor Call:

"Q. I call your attention to the definition in Webster's International Dictionary of accident; that defines an accident as `a befalling; an event that takes place without one's foresight or expectation, an undesigned, sudden and unexpected event; chance; contingency, often an undesigned and unforeseen occurrence of an afflictive or unfortunate character, a casualty, a mishap, as, to die of accident.' Now, Doctor, I will ask you if the event of the patient's death under the circumstances, in your opinion, was an event that took place without foresight and expectation? A. It was.

"Q. Was it undesigned, sudden and unexpected? A. It was.

"Q. Was it a chance? A. It was.

"Q. Due to contingency? A. It was.

"Q. Was it an undesigned and unforeseen occurrence of an afflictive or unfortunate character? A. It was.

"Q. Was it a casualty? A. It was.

"Q. Was it a mishap? A. It was.

"Q. Did he die in your opinion, by accident? A. He did.

"Q. Now, with reference to this condition, this unexpected condition that occurred there with reference to the choking and snoring, was that an event that took place without foresight and expectation? A. That's right.

"Q. Was it undesigned? A. It was.

"Q. Was it a chance? A. It was.

"Q. A contingency? A. Yes sir.

"Q. Was it an unforeseen and undesigned occurrence of an afflictive or unfortunate character? A. It was.

"Q. And was it a mishap? A. Yes sir, certainly.

"Q. In your opinion it was the direct cause of the man's death. The main cause, and the principal and moving cause of the man's death? A. Yes sir."

The deceased died unexpectedly, there was nothing in his operation, and he gave no indicative history or evidence that the calamity that befell him was likely to happen.

Plaintiff having established the death was accidental the burden shifts to the defendant and...