Beile v. Travelers Protective Ass'n of America
135 S.W. 497
Mo. Ct. App.
1911
Check Treatment
CAULFIELD, J.

(after stating the facts).- — I. In an attempt to sustain the action of the trial court the defendant asserts that Beile did not die by “accident” within the meaning of the contract, irrespective of the special exceptions of the contract. In doing so defendant relies upon cases supporting the doctrine that an injury resulting from an intentional and voluntary act, done in the usual and ordinary manner, and in the doing of which nothing unforeseen, unexpected or unusual occurs, cannot be said to have been effected by accident, although the injury itself was unusual and unexpected. It may be that according to the doctrine so invoked the action of the trial court was correct, but we are not concerned with that question. This court in a carefully considered opinion has held that the cases supporting the doctrine relied on by defendant “are not reconcilable with the general trend of the best considered American cases, which hold that accidental means are those which produce effects which are not the natural and probable consequences of the act.” [Young v. Railway Mail Assn., 126 Mo. App. 325, 342, 103 S. W. 557.] In that case this court quoted with approval from Cooley as follows. “An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means.” [Cooley, Briefs on the Law of Insurance, pp. 3156-7.] In the Young case, the plaintiff, while lifting a heavy mail sack, in the performance of his duties as postal clerk, ruptured a blood vessel in his lung. It was held that as the evidence tended to show that the rupture of the blood vessel was not a natural or probable effect of the lift, the question of whether his injury was caused by accidental means was for the jury. We see no reason for not applying that holding to the facts *643of the case at bar. There the rupture of the blood vessel was the effect of the lift; here the dilatation of the heart was the effect of the administering of the chloroform. There the question was whether- the rupture of the blood vessel was the natural or probable effect of the lift; here it should be whether the dilatation of the heart was the natural or probable effect of the administering of the chloroform. There is no reason for distinguishing between the rupture of a blood vessel and a dilatation of the heart. [Horsfall v. Pacific Mutual Life Ins. Co., 32 Wash. 132.] The only difference in this respect between the facts of the case at bar and those of the Young case is, that in the Young case there was no evidence that plaintiff had a hidden disease of the lungs, while here there is evidence of a hidden disease of the heart and of other hidden diseases, calculated to make dangerous the administering of chloroform. But the difference is one of degree only. In the Young case the lung was not strong enough to withstand the strain of the lift. In this case the heart was not strong enough to withstand the effect of the chloroform. In each case the organ affected was too weak, but in neither case did the person know of the weakness. In order for the rupture or dilatation to have been the natural and probable consequence of the lifting of the mail sack or the administering of the chloroform, and therefore not an accident, it must have been a result which was expected, or one which ought to have been expected; and this could not be without he knew of the defects in his heart and other organs or they were so apparent to the ordinary powers or means of perception that he ought to have known of them. There is no pretense that such is the case here. Even his physicians, with their learning, subjected him to the usual examination without suspecting his terrible internal condition. We conclude that the trial court erred in holding as a matter. of law that Beile’s death was not by accident.

*644II. One of the special exceptions contained in the certificate which defendant relies upon to defeat the plaintiff’s right of recovery is one which provides that the benefit does not cover injuries “fatal or otherwise, resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed or inhaled.” Unfortunately for the defendant our Supreme Court has held that “such exceptions do not cover medicine (even though it contain poison) or anything taken or administered in good faith to alleviate physical pain, even though it results in unexpected and unintentional death.” [Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 292, 75 S. W. 1102.] The principle involved in this ruling applies to the facts of this case and we are bound to follow it.

III. Defendant next contends that plaintiff cannot recover because the evidence disclosed that Beile’s death was caused “wholly or in part by a bodily or mental infirmity or disease” and was therefore within one of the special exceptions of the contract. In the first place we may remark that the jury must determine the fact as to what caused the death; the cause of death is a fact for the jury. [Laessig v. Travelers Protective Assn., 169 Mo. 272, 281, 69 S. W. 469; MacDonald v. Railroad, 219 Mo. 468, 473, 118 S. W. 78.] And this is so “even where highly scientific propositions are involved.” [Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 266, 73 S. W. 592.] They having the privilege of accepting or rejecting the advice- of physicians under oath on the subject. [MacDonald v. Railroad, supra, l. c. 481.] And while the burden was upon the plaintiff to prove that Beile’s death was “accidental” (Laessig v. Travelers Protective Assn., 169 Mo. 272, 69 S. W. 469), where plaintiffs have made out a prima facie case showing that the insured died by accident, the'burden is on the defendant to prove that it resulted from one of the excepted causes named in ■ the certificate. *645[Fetter v. Fidelity & Casualty Co. 174 Mo. 256, 269, 73 S. W. 592.] Considering this exception, then, we believe that at least a prima facie case of “death by accident” was made when plaintiff showed that Beile was in apparent good health up to the time of the administering of the chloroform; that the chloroform was taken and administered for the purpose of relieving him from the acute pain of the proposed operation; that he died while the chloroform was being administered; that in the opinion of Doctor Bailey as a witness under oath the immediate, direct and proximate cause of Beile’s death was acute dilatation of the heart immediately caused by the administering of the chloroform, and that Beile’s diseased condition did not contribute to his death and had nothing to do with causing it. Added to this was the fact, which the jury had a right to consider, that when defendant first answered it alleged -that Beile instantly died from the effect of the administering of the chloroform and did not suggest that the death was due in whole or in part to other causes. This might be treated as an admission by defendant against its interest. It is true that Dr. Bailey admitted that the diseased condition reduced Beile’s vitality and his ability to stand the chloroform, but we do not believe that this is sufficient to bring the death within the exception under consideration even if such admission be treated as an admission of the plaintiff. The language of this exception is no more favorable to the defendant’s contention than was the language construed by our Supreme Court in Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 266, 73 S. W. 592. In that case the policy covered a death only if it resulted from injuries sustained through external, violent and accidental means, “independent of all other causes.” The court said, “If we should give to those qualifying words of the policy the meaning that is now claimed by defendant they were intended to have, there would be scarcely, any limit to their nullifying influence. . . . The causes re*646ferred to in the policy are the proximate or direct, not the remote, causes. This was evidently the view of the trial court when it modified the second instruction asked by defendant, inserting the word “direct” before the word “cause,” thereby directing the jury that they could not find for the plaintiff unless they found that “the accident was the sole and only direct cause of the death of the insured, and that view of the law was correct.” A case in point on this subject is the case of Driskell v. Ins. Co., 117 Mo. App. 362, 93 S. W. 880. There the policy was in effect only “if death should result solely from such injuries.” The court said of this: “We think the only reasonable interpretation to be placed upon this clause is to say that the injury must stand out as the predominant factor in the production of the result and not that it must have been so virulent in character as necessarily and inevitably to have produced that result regardless of all other conditions and circumstances. People differ so widely in health, vitality and ability to resist disease and injury, that what may mean death to one man would be comparatively harmless to another, and therefore, the fact that a given injury may not be generally lethal does not prevent it from becoming so under certain conditions; and if, under the peculiar temperament or condition of health of an indivdual upon whom it is inflicted, such injury appears as the active, efficient cause that sets in motion agencies that result in death, without the intervention of any other independent force, then it should be regarded as the sole and proximate cause of death. The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction as the sole producing cause. In such case, disease or low vitality do not arise to the dignity of concurring causes, but, in having deprived nature of her normal power of resistance to attack, appear .rather as the passive allies of the agencies set in motion by the injury.” It was also *647held in the. cast last cited that “When evidence is introduced that points to the injury as the sole active force that brings into operation death-producing agencies, the issue of proximate cause is one of fact for the jury and not of law for the court.”

We conclude that the language of the exception under consideration means nothing more than that, in order for plaintiff to recover, the administering of the chloroform and not bodily or mental infirmity must have been the proximate cause of Belle’s death.

IV. Respondent next contends that the verdict was rightfully .set aside because the death was one “resulting from surgical treatment” and is therefore within one of the exceptions of the certificate. We are unable to agree that the death did result from “surgical treatment.” As already said, these associations do business mostly with the common people and the expressions contained in their certificates should be defined according to the ordinary and usual understanding of their signification, and be construed strictly against the insurer, where they narrow the range and force of the obligation. The Standard Dictionary defines “surgery” as “The branch of the healing art that relates to external injuries, deformities and other morbid conditions to be remedied directly by manual operations or instrumental appliances.” “Surgical” is defined as be-fined as being “of, or pertaining to, surgery.” “Treatment” means the act or manner of treating. To “treat” means to “apply remedies to;” as to treat a disease or a patient. A “remedy” is something used “for the cure or relief of bodily disease or ailment.” We gather from reading these definitions that “surgical treatment” means treating a disease or a patient by means of surgery, which, in turn, means applying manual operations or instrumental appliances to the affected part for the purpose of curing or relieving the bodily disease or ailment. Administering chloroform as was done in *648this case does not come within any of these definitions or meanings. It was not a manual operation or the application of an instrumental appliance, and was not resorted to as a remedy or for the purpose of curing or relieving Beile’s ailment. It was administered as preparatory to the surgical operation, but so might have been his bath, and if he had died in his bath it would not be seriously contended that he died as a result of a surgical treatment. And the meaning of “surgical treatment,” as the dictionary indicates it, is in accordance with the usual and ordinary understanding. The most that might be claimed for defendant is, that the language of the exception is so vague and general, not identifying the subject-matter, that parol evidence was admissible to indentify it, to show just what was comprehened within the term “surgical treatment,” and that the jury should have been left to decide the matter as a question of fact. And this was evidently the idea of defendant’s counsel at the trial, for we find that at the instance of defendant the physicians were examined as to the meaning of the term and gave conflicting opinions under oath, and .the question was submitted to the jury under an instruction offered by the defendant. The jury has found that “surgical treatment” did not include the administering of chloroform under the circumstances here‘disclosed and we are of the opinion that its finding was in accordance with the usual and-ordinary understanding of the term.

The order, of the circuit court setting aside the verdict must be reversed and the cause remanded with directions to reinstate the verdict and enter judgment for plaintiff thereon as of the date when the verdict was returned.

Reynolds, P. J., and Nortoni, J., concur.