147 So. 2d 703 | La. Ct. App. | 1962
Plaintiff, Mrs. Ernest Eugene Lee, widow of Mr. Ernest Eugene Lee, instituted this
Defendant answered Plaintiff’s petition, admitted the payment of the $3,000 under the group life insurance policy issued by it, denied generally the allegations of Plaintiff’s petition and in paragraph 14, answered:
“Under the terms of Policy No. LL-4S041, no benefits are payable for the death of a person insured unless ‘such loss resulted from bodily injuries * * sustained * * * solely through external, violent and accidental means, independently of all other causes; * * ’ and does not occur ‘directly or indirectly, wholly or partly, by: Bodily * * infirmity, or * * * Any other kind of disease, * * ”
Counsel then averred the death of Mr. Lee did not come within the coverage of the policy provided therein for accidental death and therefore denied liability to Plaintiff under the policy for said claim.
No testimony was taken in open court but the evidence consisted of depositions of the witnesses, and of the offering by Plaintiff of a letter by Howard Hansen, M. D., together with a certified copy of the Certificate of Death as well as the Physician’s Statement annexed to the Proof of Death executed by Doctor Douglas L. Gordon, acting for Doctor Chester A. Williams, Jr., Coroner, furnished by Plaintiff in connection with the claim for life insurance. Upon the evidence so offered, the Trial Judge, for written reasons assigned, rendered judgment rejecting the demands of Plaintiff and dismissing her suit, from which judgment Plaintiff prosecutes this appeal.
The allegations in Plaintiff’s petition referred to supra as to the activities of Mr. Lee upon the occasion in which he suffered the heart attack are not supported by the testimony elicited in the depositions. It appears that one Eddie Nunnery, a former employee of National Food Stores visited the warehouse of said company where the deceased Mr. Lee was employed for the purpose of visiting with a Mr. Breaux who was then there employed. The testimony reflects that Mr. Nunnery arrived at the warehouse somewhere between 10-10:30 p. m. on the 26 of May, 1960; that though Mr. Nunnery had been drinking intoxicants he was not drunk; that though he had had a fight with a son of Mr. Lee, Nolan Lee, at the establishment previously while there employed, on the occasion of this particular visit he had a friendly discussion with Nolan, at which time he gave verbal assurances to Nolan he was no longer angry with him and that, likewise, Nolan responded he had no animus toward Mr. Nunnery; that Mr. Nunnery assisted his friend, Mr. Breaux, and another employee of National in unloading some flour from a freight car; that at no time did Mr. Nunnery create any disturbance while there; that though he did josh with Mr. Breaux, same was done in a friendly, amiable manner; that at approximately 3 minutes to 1 on the morning of May 27 all of the employees who were then on the particular shift were gathered around
It is Plaintiff’s contention the cause of Mr. Lee’s death was external in that same was the result of the assault made upon him, though there was no physical contact, which precipitated an emotional stress, in consequence of which his already diseased heart gave way and thus his death was caused by accident within the meaning of the policy. The certified copy of the Certificate of Death, as does the Physician’s Statement, signed by Dr. Gordon acting for the Coroner gives the cause of death as “coronary thrombosis.” We copy herewith the report offered by counsel for Plaintiff of Doctor Howard Hansen, as follows:
“In reply to your.question, Tf a man, with a heart condition such as Mr. Lee had when you last examined him, were subjected to threat of personal violence, could this cause a fatal heart attack?’, I submit the following observations :
“I last examined Mr. Ernest Eugene Lee February 9, 1960, at which time he had arteriorsclerotic heart disease with coronary arterial insufficiency and angina on exertion. I advised him to keep on hand nitroglycerine tablets for sublingual use in event of angina pain. On March 8, 1960 I prescribed for him by telephone one hundred nitroglycerine tablets.
“In my experience, many fatal heart attacks have been so closely associated with emotional stress and/or undue physical exertion that I believe there is a causal relationship between such incidents and fatal heart attacks.”
A reading of the letter of Doctor Hansen, though same suggests the possible cause of the death of Mr. Lee to be emotional stress, does not affirmatively express the view in fact Mr. Lee’s death did result from such emotional stress. Accordingly, as the burden of proof rests upon the Plaintiff to prove her case by a preponderance of the evidence, we are of the opinion such proof tendered does not satisfy this burden and leaves only to conjecture the conclusion the emotional stress could have caused his death.
Moreover, we are unable to conclude the evidence reveals Plaintiff’s husband came to his death as a result of external violent accidental means inasmuch as we do not find that Mr. Nunnery, with whom the alleged altercation took place which Plaintiff maintains caused the death of Mr. Lee, can be charged with any act on his part precipitating the difficulty. Any emotional stress or strain which Mr. Lee sustained resulted from actions of his own volition and in no way, except an attempt to allay Mr. Lee’s feeling of antagonism, did Mr. Nunnery have a part therein. In our opinion the evidence shows if, in fact, there was an altercation between Mr. Nunnery and Mr, Lee, the same resulted from Mr. Lee being the aggressor therein. If so, his death was not caused by accidental means. We are in accord with the observations of the Court in Barham v. State Life Insurance Company of Indiana, 17 La. App. 253, 135 So. 730, where the Court at page 731 reasoned:
“It is sure that the insured came to his death by external and violent means, and the only question is: Did he come to his death by accidental means? We think not. In the case of Franchebois v. New York Life Insurance Co., 171 La. 358, 131 So. 46, 50, the court said:
“ ‘Our conclusion is that the insured was the aggressor and by his own act precipitated the difficulty which resulted in his death. Therefore, his beneficiaries cannot successfully urge that, within the meaning of the policies, the insured’s death was brought about by accidental cause.’ Also see Meister v. General Accident Corporation, 92 Or. 96, 179 P. 913, 4 A.L.R. page 718.”
For these reasons the judgment of the Trial Court is affirmed.