Provident Life Accident Ins. Co. v. Green. , 172 Okla. 591 ( 1935 )

RILEY, J.

This is an appeal from a judgment against plaintiff in error, defendant below, upon an insurance policy providing indemnity for loss of life caused by accidental means.

The policy was issued August 17, 1931, to Jacob M. Green, wherein the company insured said Jacob M. Green “against the effects resulting directly and exclusively of all other causes, from bodily injuries sustained solely through external, violent and accidental means * * * in the principal sum of $1,000.”

The policy provided that if the death of the insured shall result solely from “such injury, and within 120 days from the date of the accident,” the company would pay for the loss of life, said principal sum of $1,000.

The wife, Cora E. Green, plaintiff in this action, was made beneficiary in case of death.

Insured died on July 27, 1932, while thel policy was in full force. The beneficiary claimed that the death was covered by the policy. The company denied liability, and this action was commenced to recover said sum. i

The petition alleged that said Jacob M. Green died as a result of bodily injuries “sustained solely through external, violent, and accidental means, in that said deceased died of sunstroke”; the claim being that. such cause of death is within the terms of the policy.

The policy also provided that the company “shall have the right and opportunity to make an autopsy in case of death where it is not forbidden by law.”

Defendant answered by general denial and specifically denied that insured died from bodily injuries sustained by him solely through external, violent, and accidental means exclusive of all other causes, and as an affirmative defense alleged that notice of death was not given until after the body had been interred, and then, within a reasonable time after receipt of notice of death, the company demanded the right and opportunity to make an autopsy, which was denied, and that defendant was thereby precluded from obtaining evidence which would conclusively show the cause of the death of insured.

Reply was a general denial.

The cause was tried to a jury, resulting in a verdict for plaintiff. After motion for new trial was filed and overruled, judgment was entered for plaintiff, and defendant appeals.

There is abundant evidence tending to support the contention of plaintiff that insured died of sunstroke.

The evidence is that insured was a section foreman on the M., O. & G. Railroad; that on July 27, 1932,. he, with one man, was engaged in replacing ties on the roadbed, and was working on a cut where the breeze was obstructed. The day was very hot, the temperature being abo<ut 108 or 110 degrees F. About 2:30 p. m., after deceased had been shoveling gravel ballast upon the track for some time, he walked a short distance and was in the act of taking hold of an iron bar, when he suddenly-collapsed, fell to the ground, and died in a few minutes. He was apparently in good physical condition up to within five or ten; minutes before his death.

From the evidence as a whole, it may be said with reasonable certainty that the sole cause of the death was sunstroke.

The principal contention of defendant is that “sunstroke is not an accident within the terms of the policy.” The question was raised by demurrer to the petition, demurrer to plaintiff’s evidence, and by requested instructions.

The court instructed the jury:

“* * * If you find by a fair preponderance of the evidence that Jacob M. Green came to his death on or about the 27th day of July, 1832, by sunstroke, caused by heat from the solar system or sunrays, while in the performance of his usual duty, then you are instructed that this would be classed as an accident and the plaintiff would be entitled to recover; if you fail to so find, then you should find for the defendant.”

The question presented is, Whether death caused solely by sunstroke, in the absence of any accident contributing to or causing deceased to subject himself to the sun’s rays, is the effect resulting directly and exclusively of all other causes from bodily injuries solely through “external, violent, and accidental means.”

Upon this question the authorities appear to be in hopeless conflict.

In this state the question has been before this court a number of times in workmen’s compensation cases, and the rule seems to be well settled that:

“If the place of the employee’s work, by reason of its location and nature, would likely expose him to the danger of sunstroke or if the risk of injury by sunstroke is naturally connected with, and reasonably incidental to his employment, as distinguished from the ordinary risk to which the general public is exposed from climatic conditions, the master will be liable for the consequential injuries.” Cowan et al. v. Watson et al., 148 Okla. 14, 296 P. 974; Skelly Oil Co. v. St. Indus. Comm., 91 Okla. 194, 216 P. 933; Kimsey Heating & Plumb. Co. v. House, 152 Okla. 200, 4 P. (2d) 59; Sheehan Pipe Line Co. et al. v. Cruncleton, 163 Okla. 205, 22 P. (2d) 112.

This may be said to be the general rule in workmen’s compensation cases,

The question was also before this court in an accident insurance case in Continental Cas. Co. v. Clark, 70 Okla. 187, 173 P. 453. The provisions of the policy there under consideration were:

“If sunstroke, freezing, or hydrophobia, due in either case to external, violent, and accidental means, shall result, independently of all other causes, in the death of the insured within 90 days from date of exposure or infection, the company will pay said principal sum as indemnity for loss of life.”

In that case, as here, sunstroke resulted in the death of insured. The question presented was whether the sunstroke was due to externa], violent, and accidental means. It was there held:

“* * * That ‘accidental means’ is used to denote ‘accidental cause’, and in ease of sunstroke, if the same was suffered while the insured was engaged in his usual avocation or going about his affairs in an ordinary manner as any other person might have been under lijje or similar circumstances, and did not intentionally and voluntarily subject himself to an intense heat calculated to produce sunstroke, with the knowledge that it would probably occur, then the sunstroke was suffered from ‘accidental means’ or ‘accidental cause’, within the meaning of the policy.”

Where that or a similar provision is written into an insurance policy, it is generally held that death due to sunstroke, where the insured was at the time pursuing his usual avocation in an ordinary way, is within the protection of the policy insuring against bodily injuries sustained through external, violent, and accidental means. Bryant v. Continental Cas. Co. (Tex.) 182 S. W. 673, L. R. A. 1916E, 945; Elsey v. Fidelity & Cas. Co. (Ind.) 120 N. E. 42, L. R. A. 1918F, p. 646; Pack v. Prudential Cas. Co. (Ky.) 185 S. W. 496, L. R. A. 1916E. 952.

To the contrary are Semanick v. Continental Cas. Co., 56 Pa. Sup. Ct. 392; Inter-Ocean Cas. Co. v. Foster (Ala.) 147. So. 127.

There is also a conflict in the authorities where the policy contains no like provision.

In this case there is no such clause. The matter insured against in the policy is “the effects resulting directly and exclusively of all other causes from bodily injuries sustained * * * solely through external, violent, and accidental means.”

The effect involved is the death of insured. That such effect resulted from bodily injury is unquestioned. That the means effecting the result were external is unquestionable.

The only question, then, is: Were the means effecting the result accidental?

This is the decisive question in all the cases, whether the policy contains the particular clause with reference to sunstroke due to external, violent, and accidental means.

The divergence of opinion is illustrated by 'what is said in Caldwell v. Travelers Ins. Co., 305 Mo. 619:

“There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen.

“The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death.”

Among the cases holding that death from sunstroke is an unusual or unexpected result of the doing by insured of an intentional act, where no mischance,- slip, or mishap occurs in doing the act itself, the ensuing injury or death is not catlsed through accidental means, and though the result may be unusual, unexpected, or unforeseen, is not covered by the insurance, is Landress v. Phoenix Mut. Life Ins. Co. et al., 291 U. S. 491, 54 S. Ct. 461. The cases cited therein as upholding the rule are Nickman v. N. Y. Life Ins. Co. (C. C. A.) 39 F. (2d) 763; Paist v. Aetna Life Ins. Co., 54 F. (2d) 393; Harloe v. California St. Life Ins. Co., 206 Cal. 141, 273 P. 560; Continental Cas. Co. v. Pittman, 145 Ga. 641, and Semanick v. Continental Cas. Co., supra.

These cases in effect conclude that sunstroke is an accident in the general acceptance of the term, and at the same time say that death does not result from accidental means, that the result only is accidental. That accidental means only is insured against and not accidental results.

Defendant earnestly contends that the Landress Case, supra, is decisive of this case, and says “with this clear, logical, and understandable opinion to guide, the state courts will undoubtedly accept it.”