Horsfall v. Pacific Mutual Life Insurance , 63 L.R.A. 425 ( 1903 )

The opinion of the court was delivered by

Mount, J.

Action to recover upon an accident insurance policy issued by appellant to John Horsfall during his lifetime. The respondent, Kate Horsfall, is the beneficiary under the policy in case of the death of the insured as the result of an accident covered by the policy. Plaintiff had judgment below, and defendant appeals.

The policy of insurance is in the usual form of accident insurance, and provides, among other things, for a weekly indemnity in case of injury from accident, and for a principal sum of $1,200 to he paid to the wife of the insured in case of the death of the insured within ninety days from the happening of such accident. It also provides that, unless the claimant gives to the company immediate written notice of any accident, with full particulars and affirmative proof of death, within ninety days from the time of the death, all such claims shall he forfeited. It provides further: “This insurance does not cover . . . injuries, or death resulting therefrom, of which injuries there are no visible external marks upon the body (the body itself not being considered such mark), produced at the time of and by the accident, . . . .” The insured was a man fifty-eight years old at the time of his death, a blacksmith by occupation, weighed about 175 or' 180 pounds, and was a strong, healthy, robust man, capable of a lift of from 200 to 250 pounds without difficulty. On March 24, 1902, while at work in the shop of the Puget Sound Iron Works at Tacoma, he was called upon to assist in carrying a bar of iron one and one-half by four inches thick and about twenty-two feet long, weighing from 350 to 400 pounds. This bar of iron was lying on a pile of round, flat, and square iron close to the wall of the building, so that Mr. Horsfall was compelled to stand on top of the pile and reach below his feet in order to pick up the end of the bar. Another man had picked up one end of the bar, and Horsfall, by reason of his position, was at some disadvantage in picking up his end of the bar. He, however, picked up the end of the bar, and carried it to the anvil, where he laid it down, and immediately complained of being sick. He turned pale, trembled, grew cold, perspired profusely, and had to quit work. He went home and called a physician, who pronounced the trouble a violent dilation of the heart, causing hypertrophy, from which Mr. Horsfall died on April 18, 1902. Doctors,, both for the plaintiff and for the defendant, testified that, under the circumstances of the lift, the lift itself, in their opinion, would cause the dilation of the heart. The appellant argues but one assignment of error, viz., “in denying appellant’s motion for judgment of nonsuit and dismissal at the close of plaintiff’s ease.” It is urged in support of this assignment, (1) that the evidence fails, to show that the deceased met with an accident of any kind; (2) if he did meet with an accident, it was not snch an accident as was covered by the policy; and (3) there was no immediate notice given as required by the policy of insurance.

1. The policy insured the deceased against the effect of bodily injuries “caused solely by external, violent, and accidental means.” Death by accident is defined to be “ ‘death from any unexpected event, which happens as by chance, or which does not take place according to the usual course of things.’ So a sprain of the muscles of the back, caused by lifting heavy weights in the course of business, is injury by accident or violence ‘occasioned by external or material causes operating on the person of the insured.’ ” 2 May, Insurance (4th ed.), § 514; United States Mutual Accident Ass’n. v. Barry, 131 U. S. 100 (9 Sup. Ct. 755); North American, etc., Ins. Co. v. Burroughs, 69 Pa. St. 51 (8 Am. Rep. 212); 1 Cyc. 248, and cases cited.

The evidence shows conclusively that the deceased was a strong and apparently healthy man of fifty-eight years, who had never been sick, and who was accustomed to lift from 200 to 250 pounds without difficulty; that immediately after he had made the lift of one end of the bar weighing from 350 to 400 pounds, he became sick and “deathly pale.” His extremities became cold, and cold perspiration stood out on his face and hands. The exertion had caused a violent dilation of the heart. The result certainly was unexpected. It did not take place according to the usual course of things. If, instead of a sprain of the muscles of the heart, the deceased had sprained the muscles of his back, or arm, or ankle, it certainly could not have been reasonably claimed that the result was not due to accident. The fact that the heart was dilated or ruptured was none the less an accident, according to the usual acceptation of the term, and aecoi’ding to the definition above given. We think the evidence shows an accident within the meaning of the policy.

2. It is also urged that the injuries causing death left no visible external mark, produced at the time of and by the accident, upon the body of deceased, and therefore the injury was one excepted from the policy. The evidence as stated above shows that immediately after the accident the deceased became deathly pale and sick, his hands and feet became cold, and the perspiration stood out on his face and hands. The next day after the accident his skin, which previously had been ruddy, became a bluish gray color, and remained so until his death. These, we think, were visible external marks, and sufficient to bring the case within the terms of the policy. The rule is stated in 1 Oyc. 252, as follows:

“The external and visible sign or mark required by the proviso that the policy will not cover 'any injury, fatal or otherwise, of which there is no visible mark upon the body,’ need not necessarily be a bruise, contusion, laceration, or broken limb; it may be any visible evidence of an internal strain. Hor is it necessary that such evidence be present immediately after the happening of the accident.”

United States Mutual Accident Ass’n v. Barry, supra; Thayer v. Standard, etc., Ins. Co., 68 N. H. 577 (41 Atl. 182); Gale v. Mutual Aid, etc., Assn., 66 Hun, 600; Menneiley v. Employers’ Liability Assur. Corp., 148 N. Y. 596 (43 N. E. 54, 31 L. R. A. 686, 51 Am. St. Rep. 716); Pennington v. Pacific Mutual Life Ins. Co., 85 Iowa, 468 (52 N. W. 482, 39 Am. St. Rep. 306); Whitehouse v. Travelers’ Ins. Co., 29 Fed. Cas. No. 17,566; Union Casualty & Surety Co. v. Mondy, (Colo.) 71 Pac. 677.

3. It is next claimed that the motion should have been granted, because immediate notice of tbe accident was not given to tbe appellant as required by tbe policy. Immediate notice ordinarily means within a reasonable time and with due diligence under the circumstances of the particular case, of which the jury are ordinarily the judges. 2 May, Insurance (4th ed.), § 462; Remington v. Fidelity & Deposit Co., 27 Wash. 429 (67 Pac. 989); Western Commercial Travelers Ass’n v. Smith, 85 Fed. 401 (40 L. R. A. 653).

Ho claim is made in this action for weekly indemnity under the policy. The evidence shows that the respondent caused notice to be sent to the appellant on the 12th day after the death of her husband. Until the death of her husband she was not a claimant under the terms of the policy. This was not an unreasonable delay, and therefore it was the duty of the court to submit the question of reasonable time to the jury, which was properly done..

Finding no error in the record, the judgment is affirmed.

Fullebton, O. J., and Hadley, Andees and Dunbae, JJ., concur.