Opinion
No. 3942.
Decided October 3, 1950.
In an action on a policy of life insurance to recover double indemnity benefit for accidental death the finding that the automobile collision, which was the immediate cause of the insured's death, "inflicted no physical force upon his body" within the meaning of the policy was justified by the evidence. The widow of the insured seeking to recover such benefit has the burden of proving that the insured's death did not result "directly or indirectly from bodily or mental infirmity or disease in any form" where such an exclusion from the benefit was embodied in the contract. The finding was justified that angina pectoris is a "bodily . . . infirmity or . . . disease within the meaning of an exclusionary clause in a policy of insurance providing for double indemnity for accidental death. Where death was found to have resulted from accidental injury acting in conjunction with a pre-existing physical infirmity or disease, recovery of double indemnity benefit, under a life insurance contract which excluded such benefit if "death resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form," was properly denied.
ASSUMPSIT, by the widow of Alexandre Bergeron, upon a contract of life insurance made by him for her benefit with the defendant. The defendant has paid the face amount of the policy, and in this action the plaintiff seeks to recover double indemnity for accidental death. By the terms of the policy such indemnity is payable when the accidental death occurred "as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which there is a visible contusion or wound on the exterior of the body, . . . provided, however, that no Accidental Death Benefit shall be payable if such death resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form."
Trial by the Court (Goodnow, C. J.) resulting in a verdict for the defendant.
Alexandre Bergeron was fifty-two years of age at the time of his death. On June 1, 1946, he and his wife were visiting at Hampton Beach. Accompanied by her he was driving to their cottage from the beach, when the right rear of their car was struck by a car coming out of a parking space. The collision caused the right rear fender of the Bergeron car to be ripped and that tire to blow out. The resulting damage was estimated at $75. The driver of the other car took them to a garage then to their cottage. When the deceased got out of the car he started coughing blood but managed to get into the cottage. He died within about twenty minutes of the accident, having spit up about half a cup of blood.
The Court found and ruled that "this collision caused Mr. Bergeron considerable disturbance and excitement, but inflicted no physical force upon his body. . . . [A]t the time of and for some indeterminate period before the accident he had. suffered from angina pectoris. The excitement of the automobile accident brought on an attack of angina which culminated in a coronary occlusion. The coronary occlusion caused the death of Mr. Bergeron. . . . But for the excitement and disturbance of the collision Mr. Bergeron would not have died at the time he did, and his death occurred as a result, directly and independently of all other causes, of a coronary occlusion effected solely by the collision." Dr. Bailey who arrived after Mr. Bergeron had died observed that "he was a little cyanotic, that his skin was bluish, indicating that his death had occurred from improper oxygenization of the blood. . . . This . . . was such a visible condition existing on the exterior of the body as to constitute a visible contusion within the meaning of the policy. . . . The Court finds that the death of Mr. Bergeron resulted indirectly from bodily infirmity, and the plaintiff is not entitled to recover under the accidental death benefit rider."
The plaintiff excepted to the verdict and the following findings and rulings as being against the evidence and the law, viz: (1) "This collision . . . inflicted no physical force upon his body; (2) that at the time and for some indeterminate period before the accident Mr. Bergeron had suffered from angina pectoris; (3) that the death of Mr. Bergeron resulted indirectly from bodily infirmity. (4) that the plaintiff is not entitled to recover under the accidental death benefit rider."
The defendant excepted to the Court's ruling "that this cyanotic condition . . . was such a visible condition existing on the exterior of the body as to constitute a visible contusion within the meaning of the policy. . . ."
Other facts appear in the opinion.
Ernest R. D'Amours for the plaintiff.
Frederick W. Branch for the defendant.
The Court's finding that "[t]his collision . . . inflicted no physical force upon his (deceased) body" could reasonably be made on the evidence and plaintiff's exception thereto must be overruled. Wisutskie v. Malouin, 88 N.H. 242, 244. The manner in which the accident happened, a car coming out of a parking space ripping the right rear fender of deceased's car causing its tire to blow out resulting in an estimated damage of $75 to his car, coupled with the absence of any testimony that the collision did inflict physical force on deceased's body, is sufficient evidence to justify the above finding. See Emery v. Company, 89 N.H. 165, 167; Stanton v. Mills, 94 N.H. 92, 95.
Plaintiff's exception to the Court's finding that "at the time and for some indeterminate period before the accident Mr. Bergeron had suffered from angina pectoris" must also be overruled. Dr. Bailey, a practicing physician called by the plaintiff, testified that he examined the body of the deceased a very few minutes after death occurred and that he received a history from someone there to the effect that deceased had had pain in his chest, and in going into the history of it "its very suspicious of angina pectoris, for about a week prior to the accident." Plaintiff herself testified that in a way her husband had not been well just before this accident. She was worried about it and kept asking what the matter was with him. This was sufficient evidence to support the finding made by the Court.
Considering plaintiff's remaining exceptions together, the law is clear that she had the burden of proving that her husband's death did not result directly or indirectly from bodily or mental infirmity or disease in any form. Newell v. Insurance Co., 94 N.H. 26, 28, and cases cited.
In construing the above exclusion in this policy, the test, under the well established rule in New Hampshire, "is not what the insurance company intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean." Hoyt v. Insurance Company, 92 N.H. 242, 243; Golding-Keene Co. v. Insurance Company, ante, 64, 66; Chagnon v. Insurance Company, ante, 256. The words "disease" and "bodily infirmity" are construed to be practically synonymous and to refer only to some ailment or disorder of an established or settled character to which the insured is subject, an ailment or disorder which materially impairs, weakens, or undermines the condition of the insured and is so considerable or significant that it would be characterized as disease or infirmity in the common speech of men. These words do not include a mere frail general condition so that the powers of resistance are easily overcome, a tendency to disease, a temporary weakness nor a normal physical change that inevitably accompanies advancing years. Silverstein v. Insurance Company, 254 N.Y. 81, 84; Leland v. United Commercial Travelers, 233 Mass. 558, 564; Prudential Ins. Co. v. Carlson, 126 F.2d 607; Police Firemen's Ins. Ass'n v. Blunk, 107 Ind. App. 279, 287; Hutchison v. Aetna Life Ins. Co., 182 Ore. 639, 648; 29 Am. Jur. 747; 45 C. J. S. 809; 6 Couch, Insurance 4566.
On the evidence the Presiding Justice was warranted in finding that angina pectoris was a bodily infirmity or disease which comes within the provisions of the above exclusionary clause. Plaintiff's exception to the Court's finding that "the death of Mr. Bergeron resulted indirectly from bodily infirmity" must be overruled. Dr. Bailey testified that coronary thrombosis was the primary cause of death. He believed that the accident precipitated an attack of angina which terminated in a fatal condition. The death certificate signed by him gave the immediate cause of death as coronary occlusion due to angina pectoris and the accident as the exciting factor for the attack of angina pectoris which resulted in the insured's death by coronary occlusion.
Although there is some conflict in the authorities it is our opinion that since the death of the insured was found to result from accidental injury acting in conjunction with a pre-existing physical infirmity or disease, as previously defined, such as angina pectoris, the verdict denying recovery must be upheld. Ewing v. Equitable L. A. S. of U.S., 320 Pa. 577; Police Firemen's Ins. Ass'n v. Blunk, supra; Rodia v. Metropolitan Life Ins. Co., 354 Pa. 313; Howe v. National Life Ins. Co., 321 Mass. 283.
Plaintiff's remaining exceptions must therefore be overruled and in view of the result it is unnecessary to consider defendant's exception.
Plaintiff's exceptions overruled.
All concurred.