NEW YORK LIFE INS. CO. v. WILSON, 178 F.2d 534

HEALY, Circuit Judge. Appellant in 1928 issued to appellee’s husband a policy of life insurance providing for the payment to appellee of double indemnity upon proof that the death of the insured “resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.” The appeal is from a judgment in favor of the beneficiary under the double indemnity provision. On April 7, 1947, the insured was operated on for hernia.

He was at that time sixty-one years old and in the opinion of the operating surgeon was in the ordinary good health of the average man. Within a matter of twenty hours after the operation he died in consequence of pulmonary embolism. Evidence taken on the trial substantially shows, and the court found, that the embolus was produced by the extraordinarily violent coughing, choking and snoring of the insured resulting unforeseeably from the routine administration of opiates and sedatives incident to the operation. Death was found to have been accidental within the intendment of the insuring clause.

Reputable surgeons testifying by deposition for the insurer gave it as their opinion that the embolism was post-operative in character, that is, the result of a clot in the blood stream developing out of the ■operation itself. These experts were without first-hand knowledge of the circumstances of the case, and their testimony was accordingly of a general nature.

The equally reputable and experienced surgeons who performed or aided in the operation, and whose testimony the court accepted, were of opinion that the embolism was not connected with the surgery, that it followed too soon after the surgery to have been caused by it. It was the belief of the latter physicians — Drs. Call and Brothers — that a thrombus existed in the body of the insured, formed in consequence of an abdominal operation performed four years earlier.

A small particle or portion of the thrombus was broken loose as the result of the extreme exertion attending the violent coughing and choking; and this embolus, afloat in the blood stream, was the immediate cause of death. The death was characterized by the two as tragically unexpected. It should be added that while the insurer was given the opportunity of having an autopsy performed the opportunity was not availed of, notwithstanding an autopsy might have served to resolve conflicts.

The policy contained an exclusion clause reading: “Double Indemnity shall not be payable if the insured’s death resulted from self-destruction, whether sane or insane; from the taking of poison or inhaling of gas, whether voluntary or otherwise; from committing an assault or felony ; from war or any act incident thereto; from engaging in riot or insurrection; from participation as a passenger or otherwise in aviation or aeronautics; or directly or indirectly, from infirmity of mind or body, from illness or disease, or from any bacterial infection other than bacterial infection occurring in consequence of accidental and external bodily injury.” The clause was pleaded by the insurer as a defense.

The court found that the burden concededly resting on the Company to establish the defens’e was not sustained by evidence. Two questions are presented by the record, (1) whether the death was accidental within the meaning of the insuring clause, and (2) whether assuming death by accidental means, recovery is nevertheless precluded by the terms of the policy exclusions. The contract is an Idaho contract and the court is obliged to resolve the questions as best it can in light of the state decisions. We are of opinion that the finding of death by accident was not error. In Teater v.

Dairymen’s Cooperative Creamery, 1948, 68 Idaho 152, 190 P.2d 687, it was held that the death of a truck driver from coronary occlusion precipitated by exertion of loading heavy packages in the performance of the driver’s regular duties, thereby accelerating a pre-existing diseased condition of the heart, resulted from accident. The Industrial Accident Board had found that the death of the driver was not caused or accelerated as the result of any unexpected, undesigned, or unlooked-for mishap, hence it was not accidental. The Supreme Court concluded otherwise and directed the award of compensation.

It is contended that the holding is inapposite, there being no insurance policy involved. However, the compensation statute under which the case was decided provides that a personal injury to be compensable must be the result of an accident, and that the words “personal injury by accident” shall not include a dis-' ease except as it shall result from the injury. And it is established by the cases that the term “accident” is used in the statute in its popular and ordinary sense as denoting an unlooked-for mishap or an untoward event not expected or designed. McNeil v.

Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068. Naturally the Teater case, supra, is of value only in considering what is accident per se. We are not forgetting that here the insuring clause required affirmative proof on the beneficiary’s part that death resulted, independently of all other causes, from injury effected by accidental means. In Rauert v. Loyal Protective Ins. Co., 61 Idaho 677, 106 P.2d 1015, the language of the insuring clause was the same. The insured accidentally suffered an internal hernia while unloading a heavy barrel from a truck.

The facts disclosed on the case» for the beneficiary were that several years prior to the accident the insured had suffered a hernia necessitating an operation. As a result of the operation adhesions had formed a fibrous ring on the abdominal wall. The accident In question caused loops of the bowel to be forced through the small opening in the ring, causing strangulation and obstruction of the bowel resulting in blood poisoning and death.

The court found no difficulty in determining that the beneficiary had discharged her burden of showing that death was effected by accidental means, independently of all other causes. In its opinion the court cited with approval Browning v. Equitable Life Assur. Soc., 94 Utah 532, 72 P.2d 1060, 1076. It appeared in the latter case that an existing diseased condition (toxemia) contributed conjointly with sprain from an accidental fall materially to prolong a disability originating in the accident.

Discussing an insuring clause identical with the one now being considered the Utah court observed that it was “not required to search beyond the proximate, efficient, and inducing cause to see if there may be latent causes.” It held that the insured’s proof fulfilled the policy conditions and that indemnity was payable for the full term of the disability. Consult the same case on petition for rehearing, 94 Utah 570, 80 P.2d 348 where policy exclusions comparable with the present were noticed and held not to preclude recovery.

The policy exclusions to be considered under the second question are, specifically, those where death results “directly or indirectly, from infirmity of mind or body, from illness or disease.” We understand it to be the general view that provisions of this sort are strongly construed against the insurer, and that indemnity for death from accident covers death resulting from bodily infirmity or disease directly attributable to and proximately caused by the. accident.

Such provisions apply only to bodily infirmity or disease existing prior to the accident or contracted subsequent to and independently of the accident. Con-suit annotation to Ballam v. Metropolitan Life Ins. Co., 295 Mass. 411, 3 N.E.2d 1012, 108 A.L.R. 1, at page 21. It becomes important, therefore, for present purposes to recall that the insured did not die of thrombosis, but of embolism. A thrombus and an embolus are not the same thing. They appear to be distinct, symptomatically and otherwise. Questioned as to the difference Dr. Brothers stated: “They are different conditions.

Thrombosis may exist without symptoms, entirely without symptoms. Pulmonary embolism is very dramatic, a sudden thing, and causes death in a very few minutes if it is a large embolus.” We gather from his testimony and from that of Dr. Call that a thrombus, as here understood, is a sizable clot adhering to the wall of a blood vessel. Its presence may be due to a variety of causes, such as prior surgery, injuries, varicose veins, and the like. As already observed, it was the opinion of these surgeons that a thrombus had existed in the insured’s abdominal region since a prior operation performed four years earlier.

There was no evidence that such a condition is progressive. An embolus on the other hand is a particle of a thrombus which for some reason becomes detached and floats in the blood stream. The embolus in this instance, according to the accepted medical opinion, was broken loose by the extraordinarily violent exertion of coughing and choking. So far as the record shows the insured, except for this mishap, might have lived out his days and died of old age without ever being aware that he had a thrombus.

As illustrative of the sometimes differing attitude of the courts toward the vexing problem of disease or bodily infirmity in this type of case, consult Wheeler v. Fidelity & Casualty Co., 298 Mo., 619, 251 S.W. 924; McMartin v. Fidelity & Casualty Co., 264 N.Y. 220, 190 N.E. 414, 415. Factually,- the Missouri case cited is not too remote, and the court’s process of reasoning tends strongly to support the decision below.

It was held that if, under the peculiar condition of health of an individual injured, the injury appears as the active, efficient cause that sets in motion agencies resulting in death without the intervention of any other independent force, it should be regarded as the sole and proximate cause of death, though the victim’s physical infirmity may be a necessary condition to the result. In the second case, decided by the New York Court of Appeals, the insured; a man of seventy, struck his chest against the steering wheel when his car collided with some object.

At the hospital he complained of severe pain in the chest on breathing, and an X-ray disclosed some local injury. The pain cleared up within a few days. Twenty days later, without leaving his bed, the insured died of nephritis (inflammation of the kidneys).

The disease, according to a witness for the plaintiff, had been chronic and progressive for a period of at least three years. “It is not claimed”, said the court, “that nephritis was caused by the accident.” It was held not enough for the plaintiff to show that the insured, because of his extensively diseased condition, was unable to withstand the shock of the accident. A decision of the Appellate Division holding the insurer liable, 239 App.Div. 296, 267 N.Y.S. 473, was reversed by the Court of Appeals, two of the judges of that fine court dissenting.

Unlike the New York case just discussed, the insured’s existing thrombus would appear to have been merely a condition, not an efficient cause of death. The proximate cause, as found by the court, was the violent and unanticipated exertion productive of an embolus not theretofore present in the blood stream. The situation would seem, therefore, to fall logically within the general rule above outlined, namely, that despite policy provisions of the present type indemnity for death from accident covers death resulting from bodily infirmity or .disease directly attributable to and proximately caused by the accident.

We are not suggesting that this view of the matter would be likely to meet with universal acceptance; there is too much divergence of opinion among the courts to permit of that sort of prophecy. But from our study of the cases we are satisfied that many able courts would regard the untoward mishap in this instance as the inducing and sole proximate cause of the loss. Among such a group the Idaho court must be counted because of its uniform emphasis of a rule of

interpretation favorable, wherever permissible, to recovery. Watkins v. Federal Life Co., 54 Idaho 174, 29 P.2d 1007; Rauert v. Loyal Protective Ins. Co., supra; O’Neil v. New York Life Ins. Co., 65 Idaho 722, 152 P.2d 707, 708. O’Neil v. New York Life Ins. Co., supra, is worthy of special notice for its narrow treatment of a specific policy exclusion. That case involved four policies the first two of which contained the provision that double indemnity for accidental death “shall not be payable if the Insured’s death resulted * * * from * * * committing an assault”.

The provision in the other two was that the double indemnity was not payable if death resulted “directly or indirectly, from * * * committing an assault”. A jury had returned a verdict for the beneficiary on the first two policies and for the insurance company on the others. The insured died within a few hours from injuries received in the course of a physical encounter or fist fight in which he had engaged with a stranger. Whether the insured was regarded as the aggressor or merely as a willing party to a mutual assault the Court did not state, but he was evidently one or the other.

The Court said that “There is much contrariety of judicial opinion as to whether and under what circumstances an assault will defeat recovery on double indemnity accident insurance contracts like those involved in the case at bar. We have carefully examined the cases cited and relied upon by the Company. We cannot follow those cases.” The judgment for the beneficiary was affirmed, and that in favor of the insurer was reversed for failure to instruct on the burden of proof. The situation of pre-existing disease dealt with in Browning v. Equitable Life Assur.

Society, supra, has already been sufficiently, described; and the approval several times given that decision by the Idaho court carries a significance we are not justified in ignoring. Judgment affirmed. . § 72-1013, Idaho Code. . § 72-1014, Idaho Code. . Consult generally on what constitutes external, violent and accidental means, Jensma v. Sun Life Assur. Co., 9 Cir., 64 F.2d 457. The terms “accidental means” and “accidental result” are in Idaho regarded as legally synonymous. Rauert v. Loyal Protective Ins. Co., 61 Idaho 677, 106 P.2d 1015. . Similarly in O’Neil v. New York Life Ins.

Co., 65 Idaho 722, 152 P.2d 707, hereafter discussed, the Browning case was relied on.