2 N.W.2d 576 | Neb. | 1942
Lead Opinion
This is a suit to recover benefits under the provisions of two policies of accident insurance. At the close of all the
The plaintiff was a dentist. For twenty years prior to the date of the alleged accident he had used an X-ray machine .in the practice of his profession. In taking X-ray photographs it had long been his practice to insert the index finger of his left hand in the patient’s mouth in order to hold the film firmly against the teeth while the pictures were being taken. It is not disputed that this practice, long followed by the plaintiff, eventually resulted in the X-ray bums and the injuries complained of in this case. There is no evidence in the record of excessive exposure to the X-ray on any specific occasion; nor is there any evidence of mischance, slip or mishap occurring in the performance of his professional duties.
The record shows that on February 8, 1936, plhintiff observed that the skin on the index finger of his left hand broke open and a secretion began to emit therefrom. On November 15, 1938, the skin in the palm of his left hand cracked open. On February 7, 1939, the hand became so bad that plaintiff sought the advice of medical specialists in Chicago. On March 10, 1939, an operation was performed upon the hand and the afflicted portions thereof amputated. It is not questioned, that plaintiff was unable to practice his profession after the operation was performed. The evidence shows, however, that plaintiff was able to continue his practice with the aid of assistants up to October, 1938, and that he discontinued the practice of dentistry at that time. It is admitted that one policy lapsed in September, 1936, and the other in November, 1936. The first question to be determined is whether the foregoing facts are sufficient to establish an accident within the meaning of the insurance contracts.
The applicable provisions of one policy are:
“The Travelers Insurance Company * * * does hereby insure * * * Dr. Harry S. Murphy * * * against loss, as*43 herein defined, resulting directly, independently and exclusively of any and all other causes from bodily injury effected solely through accidental means, as specified in the following schedules: * * *
“Or, if such bodily injury * * * shall directly, independently, and exclusively of all other causes and within thirty days from date of accident, wholly and continuously disable and prevent the insured from attending to any and every kind of duty pertaining to his occupation, the company will pay the insured so long as he lives and is so disabled, the single weekly indemnity aforementioned.”
The applicable provisions in the other policy are:
“The Travelers Insurance Company * * * does hereby insure Harry S. Murphy * * * against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means (suicide, sane or insane is not covered). * * *
“Or, if such injuries, independently and exclusively of all other causes, shall wholly and continuously disable the insured from the date of accident from performing any and every kind of duty pertaining to his occupation, the company will pay, so long as the insured lives and suffers such total disability, a weekly indemnity of * *
Actions were filed on November 25, 1939, on both policies. Plaintiff' seeks to recover weekly indemnity in each case for total disability from November 15, 1938, to November 15, 1939, together with a weekly indemnity for the three weeks that plaintiff was confined in the hospital.
We are of the opinion that, when an unusual, unexpected, .and unforeseen injury or death results from ap-intentional act of the insured, the ensuing injury or death is caused by accidental means, even though no mischance, slip, or mishap occurred in the doing of the act. It is the contention of defendant that, while the result was accidental in the sense that it was unintentional, it was not caused by accidental means within the purview of the language of the policy. We do not think the attempted distinction between accidental means and accidental result can properly be made.
In Western Commercial Travelers Ass’n v. Smith, 85 Fed. 401, the court very aptly said: “The significance of this word ‘accidental’ is best perceived by a consideration of the relation of causes to their effects. The word is descriptive of means which produce effects which are not their natural and probable consequences. The natural’consequence of means used is the consequence which ordinarily follows from their use, — the result which may be reasonably anticipated from their use, and which ought to be expected. The probable consequence of the use of given means is the consequence which is more likely to follow from their use
In United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 9 S. Ct. 755, the insured voluntarily jumped from a platform, 4 or 5 feet high, to the ground, and it was alleged that the jar from the jump produced a stricture of the duodenum from the effects of which death ensued. It will be noted in this case that the act was intentional and that the resulting jar at the time of landing was certainly contemplated. Only the result was unexpected. The court said (p. 121) : “It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was, whether there was anything accidental,, unforeseen, involuntary, unexpected, in the act of jumping,, from the time deceased left the platform until he alighted on the ground; that the term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the
In Wiger v. Mutual Life Ins. Co., 205 Wis. 95, 236 N. W. 534, in answering the contention that the means of death were not accidental, because they were “set in motion by the voluntary act of the decedent,” and that' “the consequences were the result of this act, without the intervention of any mischance or slip in the doing of the act,” the court said: “It is our conclusion that the term ‘accidental means’ must be interpreted according to the usage of the average man. So interpreted we have no doubt that the means of death in this case must be designated as accidental. To eliminate from the definition of ‘accidental means’ all cases where the injury happened as the natural or foreseeable result of a force or event voluntarily set in motion by the insured may have some scientific justification, but is contrary to the common understanding of the term and tends unfairly to limit such policies to cases where the insured is guilty of no negligence.”
“Where, however, the death or injury is not the natural or probable result of the insured’s voluntary act, or something unforeseen occurs in the doing of the act, the death or injury is held to be within the protection of policies insuring against death or injury from accident or accidental means.” 7 A.L.R. 1132.
A casp very similar as to the facts, as well as the principle of law involved, is King v. Travelers Ins. Co., 123 Conn. 1, 192 Atl. 311, wherein the court held that evidence that insured dentist acquired ulcers on his index finger by continuous use of X-ray, and that the dentist was thereby prevented from performing some of his daily occupational-duties, was sufficient to support a verdict awarding recovery on.policies insuring dentist against loss from “bodily-in
A rupture of the ear caused by diving from a plank into 6 or 7 feet of water while bathing was held to be an accident resulting from accidental means. Rodey v. Travelers Ins. Co., 3 N. M. 316, 9 Pac. 348. Death from asphyxia caused by deadly gas in a shallow well into which insured voluntarily descended to fix a pump was held to have been caused by accidental means. Pickett v. Pacific Mutual Life Ins. Co., 144 Pa. St. 79, 22 Atl. 871. Where insured was pulling on a limb of a tree to remove it and fell backwards when it broke, resulting injuries were held to have been caused by accidental means. Rowden v. Travelers Protective Ass’n, 201 Ill. App. 295. Where insured was killed while driving an automobile at a high rate of speed, the court held that it was not the law that “if an injury or death is the result of a man’s intentional act, it is not an accident,” stating that the fact that an intentional act, not per se dangerous, and. not intended or expected to be attended with injurious results to the actor, may by some unforeseen, unexpected, or unusual contingency become the accidental means of injury to the actor, is too clearly demonstrated by common observation, common experience, and innumerable precedents to justify argument. Rowe v. United Commercial Travelers Ass’n, 186 Ia. 454, 172 N. W. 454. These cases support the rule that injuries unintentionally and unexpectedly sustained in the doing of an intentional act are accidents within the ordinary and usual meaning of the term.
There are cases which come to a contrary conclusion and distinguish between accidental result and accidental ipeans in this type of policy. The case of Landress v. Phoenix Mutual Life Ins. Co., 291 U. S. 491, 54 S. Ct. 461, is a leading case that makes this distinction. Many cases supporting both views are annotated in 7 A. L. R. 1132, and 41 A. L. R. 1376. But, after careful consideration, we conclude that the better reasoning is contained in the cases supporting the view expressed herein. The provisions of insurance policies should be considered as used in their ordinary and popular
On February 8, 1936, plaintiff became fully aware that he suffered an injury. The index finger of the left hand cracked open on that date. Certainly, the accident had then occurred. The cumulative effect of the exposures produced a condition described as cancerous. Without the intervention of any external force or disease it progressed until the amputation was necessary. Plaintiff carried on his practice for more than two years thereafter and defendant, as a defense, invokes the language of the policy, to wit, “if such injuries, independently and exclusively of all other causes, shall wholly and continuously disable the insured from the date of accident.” In other words, it is contended by defendant that plaintiff literally must have been totally disabled from February 8, 1936, in order to be entitled to insurance benefits. We think that plaintiff was totally disabled from the date of the accident when the controlling clauses of the insurance policies are properly interpreted. In Rathbun v. Globe Indemnity Co., 107 Neb. 18, 184 N. W. 903, this court stated the rule applicable to the case at bar in the following language:
“We think it may be said to be a matter of common knowledge that in a great many, perhaps in a large majority of, instances in which bodily injuries are received, the real nature and extent of said injuries do not reveal themselves until a greater or less time in the future and after the first pains from the hurt shall have passed away. The injured part often lies dormant for an indefinite period, with but*49 little or no consciousness of its existence by the person injured, although from the very moment of the accident, perhaps, the processes of nature may be busily engaged in developing what may have seemed to be but a slight hurt into a most serious and perhaps fatal injury. In such a case it cannot be said that the injury is not continuous and from the date of the accident, nor can it fairly or justly be said that the disability is not continuous and from date of the accident, because the injured party enjoys a brief respite from pain and suffering, only to be endured to a greater degree when perverted nature again- asserts itself. Occurring then under the circumstances stated, to hold that a brief respite from the conscious ill effects of an injury during which respite the insured was able to transact the most, if not all, of his ordinary business should bar recovery, seems to us neither reasonable nor just. It is the undisputed evidence that at the end of two weeks the injury to the insured grew worse and worse until it culminated in his death five months later. All of the medical witnesses testified that the insured died of sarcoma, a malignant disease, and that the disease had its origin in the injury sustained, and that it was a gradual development from the date of injury to the date of death.”
In Thomas v. Mutual Benefit Health & Accident Ass’n, 136 Kan. 802, 18 Pac. (2d) 151, the court said: “There is some conflict in the authorities on the question, depending to an extent on the terms of the policy. Some do not recognize the so-called ‘processes of nature doctrine,’ but most of the courts hold that the term ‘immediate’ as used in such contracts does not mean instantaneously, but that a disability is immediate where it results within the time required by the process of nature for the injury to produce the effect.” See,' also, Erickson v. Commercial Travelers, 103 Kan. 831, 176 Pac. 989. We think the reasoning applied when the word “immediate” was used in the policy has equal force when the words “date of accident” and “within thirty days from date of accident” are employed. The Kansas court in a later case, Penquite v. General Accident,
In Booth v. United States Fidelity & Guaranty Co., 3 N. J. Misc. 735, 130 Atl. 131, the same principle was expressed in the following language: “In view of the nature of the contract and the object sought, it is a fair and reasonable construction to hold that, where the injury is such that the results continue from the date of accident and wholly incapacitate the assured within such time as is required for the processes of nature to bring about such total disability, there is a continuous and total disability from the date of the accident.”
We conclude that plaintiff was totally disabled “from date of accident” and “within thirty days from date of accident” within the meaning of the policy as interpreted by the rule announced in the Rathbun case and others herein cited.
It is argued, however, that the words “from date of accident” and “within thirty days from date of accident” are so plain and definite that they are not subject to construction. If this be true, then the clauses involved must be ignored under another well-established rule of this court. This court is committed to the rule that, when the strict enforcement of a provision of an insurance policy will result in unreasonable and unjust forfeitures, or an absurd result, the courts will refuse to enforce the strict meaning of the language of the policy. Serious internal injuries often do not develop or manifest themselves until long after the accident happened. The injured person may be completely oblivious of his condition although the processes of nature may be actively engaged in developing the latent hurt into a severe or even fatal injury. The fact that the insured
Defendant further contends that total disability was not established. The policies define the term total disability as injuries which shall wholly and continuously disable and prevent the insured from attending to any and every kind of duty pertaining to his occupation. The evidence is clear that as a result of the accident plaintiff was totally disabled from carrying on his profession as a dentist on and after November 15, 1938. From and after that date plaintiff’s left hand could not be used in his work and he was actually compelled to desist his work. The progressive condition of the hand thereafter, cancerous in its nature, was such that additional proof is hardly necessary to establish that plaintiff could not use it in working in the mouths of his patients. There is much evidence in the record of his inability to do his work after that date which requires no recitation here. Under the decisions of this court, there can be no question that plaintiff was totally disabled and suffered loss of time within the meaning of the policies after November 15, 1938. See Rathbun v. Globe Indemnity Co., 107 Neb. 18, 184 N. W. 903; Woods v. Central States Life Ins. Co., 132 Neb. 261, 271 N. W. 850; McCleneghan v. London Guarantee & Accident Co., 132 Neb. 131, 271 N. W. 276.
Reversed.
Dissenting Opinion
dissenting.
I find myself unable to agree with the majority opinion in this case, and feel it my duty to express briefly some of the reasons why. I shall discuss only two of such reasons, and express a query as to a third.
From the facts stated in the majority opinion, it will be noted that the X-ray was applied to the plaintiff’s hand exactly in the manner, at the times, and in the exact dosage intended and designed by him, and that no mishap, not intended by him, occurred in any of the various applications. The evidence shows that repeated exposure to X-ray, without a sufficient length of time between exposures to allow the power of all prior exposures to be abated, causes the power of the X-ray to accumulate, until the total unabated power of the various exposures to destroy tissue becomes equal to that of such a prolonged single exposure as would cause such total accumulation of unabated power at one time. The plaintiff had used an X-ray for many years prior to 1936. He knew of its capacity to thusly accumulate such power. It is conceded that no one application of X-ray made by plaintiff would injure any one. The result without doubt was not intended. The majority opinion holds that under such a state of facts the injury to plaintiff’s hand was caused by accidental means. To this I cannot agree. The injury cannot be said to have been unusual, or even to have been unexpected on the part of the plaintiff, if by “unexpected” we mean that it was a surprise to him. With both of the two statements expressed in paragraph 3 of the syllabus of the majority opinion I agree. However, I am sure that the ordinary lay person thinks of some force having been
Secondly, the majority opinion directs rendition of judgment for the plaintiff without further trial. Both policies had lapsed for nonpayment of premium by the end of November, 1936. The accident is alleged to have occurred on February 8, 1936, that being when an injury was first noticed. The plaintiff practiced his profession daily until in October, 1938, when he took a trip to South America, intending to continue such practice upon his return. The operation upon his hand was performed on his way home from South America.' From the record it is quite evident that neither the plaintiff nor the defendant made any issue of the extent to which the plaintiff’s fingers were exposed, if at all, to the X-ray subsequent to the lapse of both policies. No evidence was' introduced by the defendant. Certainly the record does not show that the plaintiff’s fingers were not exposed to the X-ray after the lapse of both policies. The burden of proof was upon the plaintiff. May not a large portion- of the cause of the plaintiff’s injury have occurred after the lapse of both policies? The record does not answer this question. The record does show that the plaintiff used the X-ray for nearly two years after both policies had lapsed, but does not show to what extent, if at all, his fingers were exposed to its rays. Both policies involved contain provisions for payments for partial disability. It should either be held that the general finding of the trial court in favor of the defendant included a finding that the cause of the plaintiff’s injury occurred after the lapse of both policies, or the defendant should be permitted to introduce evidence upon such issue.
’ Thirdly, if what is designated as the process of nature rule is to be held to have been within the contemplation of the parties, when the words “within thirty days from date
The more nearly words and phrases in an insurance contract that are allowable and not ambiguous are given their usual and also a definite meaning, and such - meaning aptly and accurately applied to the facts of a case in which they are involved, the less damage will the great masses of the insuring public suffer. Any other course tends toward trickery on the part of the insurer, and fraudulent claims on the part of the insured, either of which in the end only damages the insuring public, and makes government by rule more difficult to maintain. Any other course tends toward still more restrictive words and phrases, toward a rise in rates to meet uncertainties, and toward increased litigation. Perhaps a statutory restriction against any policy of insurance against loss by accident, other than prescribed forms, sufficient in number and variety to meet public needs, would be of great service to the insuring public. I feel that the judgment of the trial court should be affirmed.