Summary
In New York Life Ins. Co. v. Wood, 182 Miss. 233, 180 So. 819, it was said that "accidental," as used in policies of this character, "means undesigned, unintended, unexpected, and unpremeditated."
Summary of this case from American National Ins. Co. v. CraftOpinion
No. 33195.
May 2, 1938. Suggestion of Error Overruled May 30, 1938.
1. INSURANCE.
A presumption existed that an insured did not commit suicide so as to bar recovery under express terms of double indemnity provision of life policy.
2. INSURANCE.
In action on double indemnity provision of life policy which was unenforceable if insured committed suicide, burden of proof to establish liability was on plaintiff throughout, but such burden was aided by presumption against suicide.
3. INSURANCE.
"Accidental," within life policy providing for double indemnity for death from bodily injury effected solely through external, violent, and "accidental" cause, means undesigned, unintended, unexpected, and unpremeditated.
4. INSURANCE.
Death from an excessive dose of medicine which is prescribed by physician and taken without suicidal intent results from "external, violent and accidental means" within double indemnity provision of life policy.
5. INSURANCE.
Death from taking poison by mistake results from "external, violent and accidental means" within double indemnity provision of life policy.
6. INSURANCE.
Evidence as to whether insured committed suicide or died from "external, violent and accidental cause" within double indemnity provision of life policy, showing that insured, who had been on a "spree" and acted as if he were drinking heavily, had prescription for bromidia filled, took bromidia at place where light was bad, and was found dead from overdose of bromidia, that 15 to 20 teaspoonfuls were missing from bottle, and that full dose was two teaspoonfuls, was sufficient for jury.
APPEAL from the circuit court of Oktibbeha county; HON. JOHN C. STENNIS, Judge.
Loving Loving, of Columbus, for appellant.
We must assert that under the allegations in the declaration that the plaintiff in the court below, appellee here, did not allege any cause of action under the double indemnity feature of the policy, the defendant, appellant here, having paid into court the amount due under the straight feature of the policy, and in not alleging under the terms of the policy any cause of action shown under the double indemnity clause of the policy, then the defendant in the court below, appellee here, was entitled to a peremptory instruction.
Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; U.S. Rolling Stock Co. v. Weir, 96 Ala. 396, 11 So. 438; Walton v. Lindsey Lbr. Co., 145 Ala. 661, 39 So. 671; Birmingham Rolling Stock Co. v. Rockhold, 42 So. 96; West Pratt Coal Co. v. Andrews, 150 Ala. 368, 43 So. 350; Southern Ry. Co. v. Grace, 95 Miss. 611, 49 So. 835; Inter-Ocean Casualty Co. v. Foster, 226 Ala. 337, 147 So. 127; Andrus v. Business Men's Acci. Asso., 223 S.W. 70, 13 A.L.R. 779; Martin v. Interstate Business Men's Acc. Ass'n., 187 Iowa 869, 174 N.W. 577; Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S.W. 745, 1 Ann. Cas. 252, 104 A.S.R. 857; U.S.F. G. Co. v. Hood, 124 Miss. 548, 15 A.L.R. 605, 87 So. 115; Christ v. Pacific Mut. L. Ins. Co., 312 Ill. 525, 35 A.L.R. 730, 144 N.E. 161; Carnes v. Iowa State Traveling Men's Assn., 106 Iowa 281, 68 A.S.R. 306; Landress v. Phoenix Mutual Life Ins. Co. and Travelers Ins. Co., 291 U.S. 491, 78 L.Ed. 934.
The plaintiff in the court below, appellee here, having sued under the double indemnity clause of the policy and attempted to make allegations thereunder, which we do not consider sufficient to entitle her to recover and the burden of proof is on her to show that the death of the deceased was effected through "bodily injury effected solely through external, violent and accidental cause, and that such death occurred within sixty days after sustaining such injury," and having failed to show this, we must submit that she is not entitled to recover.
Whitlatch v. Casualty Co., 149 N.Y. 45, 43 N.E. 405; Fidelity Casualty Co. of New York v. Weise, 182 Ill. 496, 55 N.E. 540; Travelers Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308; Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842.
We wish to call the court's attention to the exceptions to the double indemnity clauses in the policy, that is, the death must result directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, with several other exceptions named. The exception material to this case being: "If death result from self-destruction, whether sane or insane; . . . from physical or mental infirmity; or directly or indirectly from illness or disease of any kind." Now, from the evidence the death of the insured resulted from his taking bromidia, and all the evidence in the record in reference to his taking it shows that he was taking it intentionally. The evidence also shows that he had been taking it for a week for nervousness, then his death in connection with nervousness and bromidia, is evidently from his intentionally taking it for an illness or a disease, and that the taking was not an accidental cause as it was taken intentionally, but the result from the taking of the medicine was not what he expected and resulted in his death, and thus an accidental result, or accidental death. Then, on the other hand, the evidence also shows that he was not in a normal mental condition at the time, but was mentally infirm, and each of these conditions come within the exceptions in the policy and hence the double indemnity does not apply.
We do not think that there is any evidence that any reasonable person could look at and say that Mr. Wood's death was through external, violent and accidental means, but that, if his death was an accidental death, that the death was accidental and not the result of external, violent or accidental cause or accidental means, but was an accidental result and hence not within the double indemnity feature of the policy. The appellant must insist that there is no death in any sense shown from accidental means, and that there is no case of a death from accidental means or accidental causes set forth in the declaration.
Williams v. U.S. Mut. Acc. Assn., 133 N.Y. 366, 31 N.E. 222; Aetna L. Ins. Co. v. Vandecar, 30 C.C.A. 48, 57 U.S. App. 446, 86 Fed. 282; Tuttle v. Iowa State Traveling Men's Assn., 132 Iowa 654, 7 L.R.A. (N.S.) 223, 104 N.W. 1131; Laessig v. Travelers' Protective Assn., 169 Mo. 280, 69 S.W. 469; Lamport v. Aetna L. Ins. Co., 199 S.W. 1024; Brunswick v. Standard Acc. Ins. Co., 278 Mo. 154, 213 S.W. 45, 7 A.L.R. 1213; Continental Casualty Co. v. Hardenbergh, 121 Miss. 1, 83 So. 278.
Joseph S. Rice, of Starkville, for appellee.
The Supreme Court of Louisiana held as cited in 45 L.R.A. 1923, "to prevent recovery on the ground that insured committed suicide, where the evidence as to the cause of the death was circumstantial, the circumstances must be such as to exclude every reasonable hypotheses that death was accidental."
Valesi v. Mutual Life Ins. Co., 151 La. 405, 91 So. 818; Canal-Commercial Trust Sav. Bank v. Employers' Liability Assur. Corp., 155 La. 720, 99 So. 542.
Death caused by an excessive dose of medicine prescribed by a physician is a death from external, violent and accidental means within the terms of the policy.
Dezell v. Fidelity C. Co., 176 Mo. 253, 75 S.W. 1102; Brown v. Continental Casualty Co., 108 So. 464; 45 A.L.R. 1521.
Death resulting from taking poison by mistake is a death from external, violent and accidental means.
Healey v. Mutual Acc. Assn., 133 Ill. 556, 9 L.R.A. 371, 23 A.S.R. 637, 25 N.E. 52; 45 A.L.R. 1527.
This court seems to have never decided a case exactly parallel to this but you have construed by your opinion in the case of North American Accident Insurance Company v. Henderson, 177 So. 529, "accidental means" which is correlative to this case.
Lickleider v. Iowa, etc., Assn., 184 Iowa 423, 166 N.W. 363, 168 N.W. 884, 3 A.L.R. 1295; Lewis v. Ocean, etc., Corp. 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129.
There is a legal presumption that a wound was not intentionally inflicted either by the wounded person himself or by a third person, and this presumption is available as affirmative evidence from which a jury may draw the inference that the wound was caused by accidental means.
Caldwell v. Iowa State Traveling Men's Assn., 156 Iowa 327, 136 N.W. 678; Jones v. U.S. Mut. Acc. Assn., 92 Iowa 654, 61 N.W. 485; Connell v. Iowa State Traveling Men's Assn., 139 Iowa 444, 116 N.W. 820; Travelers Ins. Co. v. McConkey, 127 U.S. 661, 32 L.Ed. 308, 8 Sup. Ct. Rep. 1360; Cronkhite v. Travelers Ins. Co., 75 Wis. 116, 17 A.S.R. 184, 43 N.W. 731; Freeman v. Travelers Ins. Co., 144 Mass. 572, 12 N.E. 372; Aetna L. Ins. Co. v. Milward, 118 Ky. 716, 68 L.R.A. 285, 82 S.W. 364, 4 Ann. Cas. 1092; Preferred Acc. Ins. Co. v. Fielding, 35 Colo. 19, 83 P. 1013, 9 Ann. Cas. 916; Western Travelers' Acc. Assn. v. Munson, 73 Neb. 858, 1 L.R.A. (N.S.) 1068, 103 N.W. 688; 1 C.J. 495; Western Travelers Acc. Assn. v. Holbrook, 65 Neb. 469, 91 N.W. 276, 94 N.W. 816.
In an action upon a policy of accident insurance, where the question of the cause of the death of the insured is submitted to the jury, a reviewing court will not set aside the verdict unless it is shown to be clearly wrong.
Rathjen v. Woodmen Acc. Assn., 93 Neb. 629, 141 N.W. 815; Modern Woodman Acc. Assn. v. Shryock, 54 Neb. 250, 39 L.R.A. 826, 74 N.W. 607; Western Travelers Acc. Assn. v. Holbrook, 65 Neb. 469, 91 N.W. 276, 94 N.W. 816; Moon v. Order of United Commercial Travelers, 96 Neb. 65, 52 L.R.A. (N.S.) 1203, 146 N.W. 1037, Ann. Cas. 1916B 222.
The burden is upon the plaintiff to show that the death was accidental, or, in other words, that it was not suicidal. This he must do by evidence of the actual facts or a situation from which accident is the reasonable inference, not a reasonable inference or possible one.
Brunswick v. Standard Acc. Ins. Co., 213 S.W. 45, 7 A.L.R. 1228.
A policy insured against bodily injuries sustained through external, violent, or accidental means, but provided that it did not cover injuries resulting from anything accidentally or otherwise taken, administered, absorbed, or inhaled. Held, that the exception did not preclude a recovery for unintentional death caused by medicine, even though containing poison, taken or administered in good faith to alleviate physical pain. Dezell v. Fidelity Casualty Co., 75 S.W. 1102.
Brown v. Continental Casualty Co., 108 So. 464, 45 A.L.R. 1527; Equitable Life Assur. Soc. of the U.S. v. Hemenover, 67 P.2d 80; Manbacker v. Prudential Ins. Co. of America, 7 N.E.2d 18, 111 A.L.R. 618.
The plaintiff's case comes within the coverage of this policy. Her husband intended to take veronal, but he never intended to take a lethal dose nor did he intend to take enough to do him any harm; he desired to get relief from pain, not relief from life. He took too much veronal; it was a mistake, a misstep, and unexpected effect from the use of his prescribed medicine. It was an accident, and must have been an accident unless it was intentional. In other words, if the insured did not intend to kill himself, he intended to take enough veronal, as he had done theretofore, to relieve the pain of earache. By mischance he took too much. His death was accidental and, as we use these words in common parlance, we would speak of it as an accidental death. Contracts are to be interpreted in the light of the language which we commonly use and understand; in other words, our common speech. Such at least should be the rule applied to the interpretation of these policies, and which we sometimes refer to as a liberal construction.
Abrams v. Great American Ins. Co. of New York, 269 N.W. 90, 199 N.E. 15; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432, 38 A.L.R. 1115; 111 A.L.R. 632; Spence v. Equitable Life Assur. Soc., 146 Kan. 216, 69 P.2d 713; Meyer v. New York L. Ins. Co., 249 App. Div. 243, 291 N.Y.S. 912.
Argued orally by Joseph S. Rice for appellee.
Appellee brought this action in the circuit court of Oktibbeha county against appellant to recover the sum of $1,000 under a double indemnity provision of an insurance policy on the life of her husband, Harry D. Wood, issued by appellant in 1919, and in which appellee was named as beneficiary. The trial resulted in a verdict and judgment in appellee's favor, from which judgment appellant prosecutes this appeal.
The double indemnity provision of the policy is in this language:
"Double Indemnity — Double the Face of this Policy upon receipt of due proof that the death of the insured resulted directly and independently of another cause from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within sixty days after sustaining such injury.
"This Double Indemnity Benefit will not apply if the Insured's death resulted from self-destruction, whether sane or insane; from any violation of law by the Insured; from Military or Naval Service in time of war; from a state of war or insurrection; from engaging in submarine or aeronautic operations; from physical or mental infirmity; or directly or indirectly from illness or disease of any kind. The Company shall have the right and opportunity to examine the body, and to make an autopsy unless prohibited by law."
The defense was that the insured committed suicide by taking an overdose of bromidia. Appellant paid into court the amount due, excluding any liability under the double indemnity provision.
The insured died in December, 1936, and the evidence showed without conflict that his death was caused by an overdose of bromidia. He was addicted to periodic sprees, and had been for some years. After these sprees he would be very nervous, and about two years before his death a doctor in Mobile had given him a prescription for medicine to relieve the nervousness. The insured had been on a beer spree for a week or more before his death. He was an employee on the staff of the Starkville News, and was in the printing office of that paper when he took the overdose of medicine. Two of his coworkers, Pugh and Fox, saw him at frequent intervals between 5 and 6:30 o'clock on the afternoon of his death. Both testified that he acted and talked as if he were drinking heavily; one of them, at the request of the insured, had the prescription for the bromidia refilled, and brought the medicine to him. After the medicine was handed to him he was seen with a glass and spoon and pouring some of the medicine into the spoon. This occurred in the back of the office where the light was bad. Between 6 and 6:30 o'clock on the same afternoon he was found lying on the floor in an unconscious condition, and nearby was a wet place on the floor with wadded paper lying on it. He was taken home by Pugh and Fox, and Dr. Eckford was called. Dr. Eckford testified that Wood's breath was strong with bromidia; that he pumped the contents of his stomach out, and it was heavily loaded with the medicine; and that he had no doubt but that his death was brought about by an overdose of that remedy. A bottle of bromidia from which fifteen to twenty teaspoonfuls had been removed was found in his pocket. Dr. Eckford testified that a full dose was two teaspoonfuls.
Appellant relied on those facts as sufficient to show suicide. The question is whether the death of the insured resulted directly and independently from an "external, violent and accidental cause." There is a presumption against suicide. Massachusetts Protective Association v. Cranford, 137 Miss. 876, 102 So. 171. Although the burden of proof to establish liability is upon the plaintiff throughout, such burden is aided by the presumption against suicide. Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842. The word "accidental" used in policies of this character means undesigned, unintended, unexpected, and unpremeditated. In North American Accident Ins. Co. v. Henderson, Miss., 177 So. 528, 529, the word is defined thus: "If a man jump from a four-story window to the pavement below, deliberately intending to do so, this is no accident but is suicide, and is not covered by an accident policy. But if the same person had intended to look out from the window, and, in approaching it, tripped over some object on the floor and was thereby thrown out of the window, this would be an accident, although the party was negligent in not seeing the object over which he tripped."
Death from an excessive dose of medicine prescribed by a physician taken without the intention of self-destruction is a death from "external, violent and accidental means" within the terms of such a policy. Dezell v. Fidelity Casualty Co., 176 Mo. 253, 75 S.W. 1102. "That a physician voluntarily attempts to inhale chloroform for headache and insomnia does not prevent recovery on an accident insurance policy for his death, due to his accidentally taking an overdose of the remedy." Brown v. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A.L.R. 1521. Nor does death from taking poison by mistake prevent a recovery on such a policy. Healey v. Mutual Accident Association, 133 Ill. 556, 25 N.E. 52, 9 L.R.A. 371, 23 Am. St. Rep. 637.
Appellant relies largely on Landress v. Phoenix Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382. We do not think that decision is in point. The death in that case was caused by a sunstroke. The court held the means to be natural, although the result was accidental, therefore there was no liability under the policy. In the present case the means was not natural; it was accidental, external, and violent and caused death, or rather, the evidence was sufficient to go to the jury on whether or not that was true. There was no evidence of a threat of suicide, or anything else tending to show such a purpose.
Affirmed.