Zinn v. Equitable Life Ins. Co. of Iowa

• Decision Date: 02 December 1940
• Docket Number: 28052.
• Citation: 6 Wn.2d 379,107 P.2d 921
• Parties: ZINN v. EQUITABLE LIFE INS. CO. OF IOWA et al.
• Court: Washington Supreme Court

107 P.2d 921

6 Wn.2d 379

ZINN v. EQUITABLE LIFE INS. CO. OF IOWA et al.

No. 28052.

Supreme Court of Washington, En Banc.

December 2, 1940

Actions by Arminta V. Zinn against the Equitable Life Insurance Company of Iowa to recover under the double indemnity provisions of life insurance policies, wherein Earle W. Zinn and another were made additional defendants. From a judgment for plaintiff and additional defendants, defendant appeals.

Affirmed.

Appeal from Superior Court, King County; James B. Kinne, judge.

Kahin Carmody & Schramm, of Seattle, for appellant.

Caldwell Lycette & Diamond and Earl W. Zinn, Jr., all of Seattle, for respondents.

SIMPSON Justice.

Plaintiff instituted actions for the purpose of collecting amounts claimed to be due under the double indemnity provision of four life insurance policies insuring Earle W Zinn. Two actions were brought, one involving three policies of insurance and the other involving one policy.

The cases were tried together although separate judgments were entered in each. They have been consolidated for the purposes of appeal.

After action was begun, Earle W. Zinn, Jr., and Dorothy A. Zinn were made additional defendants, for the reason that they are contingent beneficiaries under each of the policies of insurance. The case was tried to the court sitting without a jury. At the conclusion of the trial, findings of fact were made, and judgment was entered in favor of plaintiff and the additional defendants. Thereafter defendant Equitable Life Insurance Company of Iowa presented its motion for a new trial on the ground that there was no evidence or reasonable inference from the evidence to justify the judgment, and that error in law occurred at the trial, excepted to at the time by defendant. The motion for a new trial was denied. The life insurance company has presented this appeal.

Appellant's assignments of error are that the court erred in finding that the death of Earle W. Zinn resulted from external, violent and accidental means; in making findings of fact and conclusions of law in favor of respondents; in entering judgment in favor of respondents; and in denying appellant's motion for a new trial.

The undisputed facts are as follows: Arminta V. Zinn is the widow of the insured, and Earle W. Zinn, Jr., and Dorothy A. Zinn are their children. Appellant issued four separate policies of insurance on the life of Earle W. Zinn.

Two of the policies provide that the company will pay double the face of the policy if death results '* * * directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means * *; provided such death did not occur * * * as a result directly or indirectly of disease in any form. * * *'

The other two policies provide that double the face of the policy will be paid if death results '* * * directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means, contained in paragraphs 17 and 19 hereof.'

Paragraph 17, mentioned in the above quotation, provided: 'Nor shall such benefit be payable in case such death resulted directly or indirectly from (a) bodily or mental infirmity or disease in any form. * * *'

For several years just prior to his death Earle W. Zinn was a strong, healthy, and active business man. In October, 1937, he was examined by a doctor who advised him that he had high blood pressure. After that date Mr. Zinn continued to conduct his business affairs as usual and did not exhibit any evidences of ill health. February 9, 1939, the insured visited his doctor's office. At that time, in order to relieve the high blood pressure condition, the doctor made a small incision in the insured's left arm near the elbow, and withdrew some blood therefrom. The lancing was intentional and the usual precautionary measures to prevent infection were carried out. Three days thereafter the arm presented a bruised appearance, and was swollen to a considerable extent. On the morning of February 17, Mr. Zinn was taken to a hospital where he died that night. An autopsy was performed by five well-qualified pathologists of the city of Seattle. They concluded that the cause of the insured's death was staphylococcus septicemia, or what is commonly called blood poisoning, brought about by the introduction of a germ known as staphylococcus into the incision made by the physician in withdrawing blood from the arm. The pathologists testified that the germ entered the body of the insured from the outside at the time the incision was made, or subsequently at times when the wound was dressed. They testified that incisions such as the one made by insured's doctor are a very common procedure in hospitals in Seattle, that it was done hundreds of times each day, and that infections following the incisions were very unusual and only happened on rare occasions.

The question to be decided is whether death is accidental within the meaning of the provisions of insurance policies providing double indemnity for death resulting 'directly and independently of all other causes, from bodily injuries effected solely through violent, external and accidental means,' where an operation is performed and an incision intentionally made, the usual precautions to prevent infection are taken, no mishap occurs during the operation, germs enter from without through the incision and result in septicemia, the entry of the germs being entirely unforeseen, unusual, unexpected and unintended.

The authorities reflect two clearly defined lines of thought upon this question. One line of cases holds that death is not accidental in cases in which an unusual or unexpected result occurs by reason of the doing of an intentional act on the part of the insured; that it must appear that the means used was accidental, and that it is not sufficient to show that the final result was unusual, unexpected or unforeseen. The other line of cases holds that where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or 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 causes the injury or death.

It is impractical to attempt a discussion of all the cases which might have some bearing on the solution of the question Before us. Counsel cite over one hundred cases in their briefs which deal with the problem contained in the case at bar.

The following cases support the holding that death is not accidental where the means are intentional, but the results are unusual or unexpected: Mitchell v. New York Life Ins. Co., 136 Ohio St. 551, 27 N.E.2d 243; Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56; Kimball v. Massachusetts Acc. Co., 44 R.I. 264, 117 A. 228, 24 A.L.R. 726; Smith v. Travelers' Ins. Co., 219 Mass. 147, 106 N.E. 607, L.R.A.1915B, 872; Lehman v. Great Western Acc. Ass'n, 155 Iowa 737, 133 N.W. 752, 42 L.R.A.,N.S., 562; Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635, 111 A.L.R. 622; Curry v. Federal Life Ins. Co., 221 Mo.App. 626, 287 S.W. 1053; Pope v. Business Men's Assur. Co. of America, Mo.App., 131 S.W.2d 887.

Other cases, such as Gohlke v. Hawkeye Commercial Men's Ass'n, 198 Iowa 144, 197 N.W. 1004, 35 A.L.R. 1177; Hruzek v. Old Line Life Ins. Co. of America, 221 Wis. 279, 265 N.W. 566; O'Connell v. New York Life Ins. Co., 220 Wis. 61, 264 N.W. 253; Taylor v. New York Life Ins. Co., 176 Minn. 171, 222 N.W. 912, 60 A.L.R. 959; Whatcott v. Continental Casualty Co., 85 Utah 406, 39 P.2d 733; Carter v. Standard Acc. Ins. Co., 65 Utah 465, 238 P. 259, 41 A.L.R. 1495; Equitable Life Assur. Society v. Hemenover, 100 Colo. 231, 67 P.2d 80, 110 A.L.R. 1270; Horton v. Travelers Ins. Co., 45 Cal.App. 462, 187 P. 1070; Maryland Casualty Co. v. Hazen, 182 Okl. 623, 79 P.2d 577; Spence v. Equitable Life Assur. Soc., 146 Kan. 216, 69 P.2d 713; Goethe v. New York Life Ins. Co., 183 S.C. 199, 190 S.E. 451; King v. Commercial Casualty Ins. Co., 197 N.C. 566, 150 S.E. 19; Nowsoms v. Commercial Casualty Ins. Co., 147 Va. 471, 137 S.E. 456, 52 A.L.R. 363; Ocean Accident & Guarantee Corp. v. Glover, 165 Va. 283, 182 S.E. 221; Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A.L.R. 1521; Garrett v. International Travelers' Ass'n, Tex.Civ.App., 14 S.W.2d 944; International Travelers Ass'n v. Francis, 119 Tex. 1, 23 S.W.2d 282; and Washington Fidelity Nat'l Ins. Co. v. Anderson, 187 Ark. 974, 63 S.W.2d 535, uphold the idea that death is accidental, even though the means are intentional, where the results are unusual, unexpected, or unforeseen.

We feel that the principle of law announced in the cases last cited reflects the great weight of authority and rests upon sound legal principles.

In arriving at our conclusion, we start first with the rule of construction which prevails in the law of insurance to the effect that any ambiguities in the language of policies are to be interpreted in the light most favorable to the insured. Ringstad v. Metropolitan Life Ins. Co., 182 Wash. 550, 47 P.2d 1045, 106 A.L.R. 1532; Miller v. Penn Mut. Life Ins. Co., 189 Wash. 269, 64 P.2d 1050; Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798; Kane v. Order of Commercial Travelers of America, 3 Wash.2d 355, 100 P.2d 1036.

Another rule of construction in the law of insurance which is generally followed is that the language of insurance policies is to be interpreted in accordance with the way it would be understood by the average man, rather than in a technical sense. Kane v. Order of Commercial Travelers of America, supra; Lewis v. Ocean Acc. & Guar. Corp., 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129.

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