Parker v. Provident Life Accident Ins. Co. , 178 La. 977 ( 1933 )

I cannot see any such difference between this case and the case of Mrs. Brown v. Continental Casualty Co., 161 La. 229,108 So. 464, 45 A.L.R. 1521, as to reconcile the ruling in this case, that the injury was not caused by accidental means, with the ruling in Mrs. Brown's Case, that Dr. Brown's death was caused by accidental means.

If the court had found in the Brown Case, according to some standard of measure, that the doctor had inhaled a greater quantity of chloroform than he intended to inhale — e.g., that the doctor had poured out a greater number of drops of chloroform than he intended to pour out — there would be some justification for the distinction which is made in the prevailing opinion in this case. But the only sense in which the court found that Dr. Brown inhaled more chloroform than he intended to inhale was that he inhaled enough to kill him, and did not intend to inhale enough to kill him. And the only sense in which Corduke Parker pulled harder than he intended to pull on the lever of the jackscrew is that he pulled hard enough to cause a hernia, and did not intend to pull hard enough to cause a hernia. We cannot determine by any standard of measure the difference between the strain which Parker intended to apply and the strain which he did apply to the lever of the jackscrew. In the Brown Case, we could not determine by any standard of measure the difference between the quantity of chloroform which Dr. Brown intended to inhale and the quantity which he did inhale. The only difference between the two quantities, as far as the court could determine, or deemed it necessary to determine, was that the doctor intended to inhale a quantity of chloroform not enough tokill him, and he did inhale enough to kill him; and it was the inhaling of that difference, whatever the difference may have been, that was the accidental means that caused the doctor's death. And so it is in this case. The only difference between the strain which Parker intended to apply and the strain which he did apply to the lever of the jackscrew is that the strain which he intended to apply was not enough to rupture him, and the strain which he did apply was enough to rupture him; and it was the applying of that difference, between the strain that Parker intended to apply and the strain which he did apply to the lever of the jackscrew, that was the accidental means that caused the hernia.

The leading case on this subject, as to whether there is a difference between "accidental death or injury" and "death or injury by accidental means," is United States Mutual Accident Association v. Barry, 131 U.S. 100-123, 9 S. Ct. 755, 759, 33 L. Ed. 60. In that case Dr. Barry, in company with two other physicians, going to visit a patient, deliberately jumped off of a platform, about four feet from the ground. The two other physicians, who jumped ahead of Dr. Barry, landed safely on the ground; but Dr. Barry suffered a stricture of theduodenum, which caused his death nine days afterwards. In defense of the widow's suit on an accident insurance policy, the company set up the plea that, although the injury which caused Dr. Barry's death might have been an accidental injury, the injury itself was not caused by accidental, means. In other words, it was contended that the cause of the injury was not accidental, because Dr. Barry jumped exactly as far as he intended to jump,id est, from the platform to the ground, knowing when he left the platform that he would stop when his feet reached the ground, and not sooner. The jury decided that the fatal injury was caused by accidental means; and the judgment, of the Circuit Court of the United States for the Eastern District of Wisconsin, 23 F. 712, in accordance with the verdict, was affirmed. The case came up, of course, on the defendant's objections to the judge's instructions to the jury; and among the instructions which were objected to, and which were approved, were these:

"We understand from the testimony, without question, that the deceased jumped from the platform with his eyes open, for his own convenience, in the free exercise of his choice, and not from any perilous necessity. He encountered no obstacle in jumping, and he alighted on the ground in an erect posture. * * *

"Of course it is to be presumed that he expected to reach the ground safely and without injury. Now, to simplify the question and apply to its consideration a common-sense rule, did anything, by chance, or not as expected, happen, in the act of jumping or striking the ground, which caused an accident? This, I think, is the test by which you should be governed in determining whether the alleged injury, if any was sustained, was or was not effected through accidental means."

The only sense in which it could be said that Dr. Barry jumped further than he intended to jump was that he jumped far enough to injure himself, and did not intend to jump far enough to injure himself. He miscalculated not the distance that he intended to jump but the distance that he could safely jump; just as Dr. Brown miscalculated the quantity of chloroform that he could safely inhale; and just as Corduke Parker miscalculated the strain that he could safely apply to the lever of the jackscrew. In each instance it was the miscalculation of what could be done safely that was the accidental means of the injury. In Dr. Brown's case it was inhaling too much chloroform; in Dr. Barry's case it was jumping too far; and in Corduke Parker's case it was pulling too hard on the lever of a jackscrew. If the inhaling of too much chloroform was the accidental means which caused Dr. Brown's death, so was the jumping too far the accidental means which caused Dr. Barry's death, and so was the pulling too hard on the lever of the jackscrew the accidental means which caused Corduke Parker's hernia.

In Brown v. Continental Casualty Company, we said:

"We do not believe that the doctrine stated, making a distinction between ``accidental death or injury' and ``death or injury by accidental means,' means that, under a policy of insurance against death or injury by accidental means, the insurance company is not liable for an accidental death or injury resulting from a voluntary act in which the insured did not intend or anticipate a fatal or injurious result. The ruling in the California case cited [Rock v. Insurance Co., 156 P. 1029, 172 Cal. 462, L.R.A. 1916E, 1196] is well qualified by the statement ``that there must have been some element of unexpectedness in the preceding act or occurrence which led to the death or injury,' to make the insurer liable. In the case before us, there was this element of unexpectedness, that the insured inhaled more chloroform than he expected to inhale. The means or cause of his death was not that he intentionally inhaled chloroform, which he had done many times before, but that he unintentionally inhaled too much chloroform."

It is said in the prevailing opinion in this case that the court is asked to hold — and declines to hold — that an injury is caused by accidental means "if an unforeseen, unexpected, unanticipated injury results from the doing of an act voluntarily and as expected, the doing of the act being the means by or through which the injury was caused." Of course, if an injury results from the doing of something exactly as it was intended to be done, and without any miscalculation as to the extent to which it could be safely done, the injury is not accidental, in any sense, but is intentional; and the insurance company, in such a case, is not liable. Or, if an injury results from the doing of some ordinary and customary act which could not, of itself, cause the injury to a person in sound health, the company is not liable, because the company's liability is limited, by the terms of the policy, to "injuries caused directly, solely, and independentlyof all other causes, by accidental means." We had a case like that in Frerichs v. London Lancashire Indemnity Company of America, 169 La. 182, 124 So. 821, where the insured, while wading knee-deep in the lake, catching soft-shell crabs with a dip net, fell against a post and bruised his head, became unconscious, and died ten days afterwards. An autopsy disclosed that death was caused not by the fall against the post but by a cerebral hemorrhage, resulting from arteriosclerosis; hence the company was not liable. And so it is in every case where injury or death results, from the exertion or otherwise, in the doing of an act in the way in which — and to the extent to which — it was intended to be done — and the doing of which by a person in sound health could not cause the injury. The insurance companies are well protected by the terms of their policies in that respect.

There is really no justice in this supposed distinction, which the members of the Association of Life Insurance Counsel are striving to impress upon the courts, between "accidental injury" and "injury by accidental means." Surely, the insurance agents do not inform prospective accident insurance policy holders that, if they are injured or killed in an accident, the company may plead successfully that the accidental injury or death was not an injury or a death by accidental means. If the insurance agents should make it a practice to so inform their "prospects," the accident insurance companies would go out of business, because no one would invest his money in a wager as to whether a court of justice would decide, in a case of injury or death by accidental means, whether the case was really a case of injury or death by accidental means, or a case of accidental injury or death. And I believe that a vast majority of prospective policyholders, and of all men of ordinary or above ordinary intelligence, outside of the Association of Life Insurance Counsel, would be led to join in the wonder of John Byrom:

"Strange all this difference should be Twixt Tweedledum and Tweedledee."