Hesse v. Traveler's Ins. Co.

Mr. Justice FRAZER filed a dissenting opinion, in which Mr. Justice KEPHART and Mr. Justice SADLER concurred. Argued October 4, 1929. Plaintiff, the beneficiary named in a policy of insurance issued by defendant, brought suit thereon; the trial judge entered a nonsuit, which the court in banc refused to set aside, and from that judgment the present appeal is taken. The policy insures "against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means," and upon this clause plaintiff necessarily relies for recovery. In our opinion the judgment appealed from must be affirmed.

The facts regarding the insured's death are not disputed. He was suffering from a disease of one of the kidneys, which had been progressively growing worse. As a result of a careful examination, his physicians concluded it was necessary to perform an operation, and that he was in a proper condition to have it done. They advised him of the necessity, that the operation would be a major one, consisting of the removal of the diseased kidney, and that he would have to be anæsthetized by a specified anæsthetic, which was considered to be the safest one known. The insured consented and selected the operating surgeon. The anæsthetic was properly administered and the operation skillfully performed, without any slip, mischance or mistake, and without resulting in a hemorrhage or shock. After it was completed and while the doctors were closing the wound, the patient suddenly stopped breathing, and all efforts to revive him failed. All the physicians testified that such a result was exceedingly rare, occurring perhaps once in a hundred thousand administrations; that the reason why it ever occurred was unknown; and that the death was known as an anæsthetic death, due to the hypersusceptibility of the particular individual to the particular anæsthetic. No complaint is now made of anything that was done or left undone before, during or after the operation, but only that a death occurring under such circumstances was within the clause of the policy above quoted. To this we cannot agree. Before we apply the settled rule that a policy of insurance is to be so construed as to make certain that the beneficiary is not deprived of the indemnity provided for, we must first determine, under the plain language of the policy, if its language is untechnical and unambiguous, as here it is, what was the loss insured against: 14 Rawle C. L. 925; Northern Assurance Co. v. Grand View Building Association, 183 U.S. 308; Smith v. National Life Ins. Co., 103 Pa. 177, 182; Levinton v. Ohio Farmers Ins. Co.,267 Pa. 448, 451-2. This essential rule in the construction of insurance as well as all other contracts, compels us to decide the present case against appellant.

Even if we assume that the operation was a bodily injury within the meaning of the policy, we have it admitted that the insured's death did not result from the operation, but solely from the anæsthetic, neither the administration nor the effect of which could possibly be a bodily injury, certainly not, under the facts above recited, a bodily injury "through . . . . . . accidental means." There were no accidental means, all those employed were intentional. Nor, if appellant could escape this fact, would she be greatly helped, for decedent's "bodily injuries [were not] effected directly and independently of all other causes" through such means. On the contrary, admittedly the effective cause was his hypersusceptibility to the particular anæsthetic. Defendant did not insure against a loss resulting from such a cause, yet admittedly it was at least a contributing cause of the death, which did not result "independently" of it; and this alone is sufficient to exclude liability under the policy.

Kelley v. Pittsburgh Casualty Co., 256 Pa. 1, relied on as compelling an opposite conclusion, does not do so. In that case plaintiff slipped on icy ground, and thereby sustained an injury to his abdomen, to recover for which that suit was brought. The casualty company defended on the ground that plaintiff had adhesions of the bowels, following a previous operation for appendicitis, and that, if those adhesions had not existed, the accident to the plaintiff would not have had any serious results. The jury were told "that the plaintiff could not recover unless the testimony showed to their satisfaction that the slipping of the plaintiff as described by him was the sole, efficient cause [of the injury] . . . . . . and that no other cause contributed" thereto. The legal principle applicable to that situation was stated to be that "The phrase 'resulting, directly, independently and exclusively in death' refers to the efficient, or, as some courts speak of it, the predominant cause of death at the time it occurs. In other words, it means the proximate cause." It will be noticed, however, that there the insurance company could have ascertained the existence of the adhesions, if a proper examination had been made, while here plaintiff's hypersusceptibility to the anæsthetic could not possibly have been discovered. It will be recalled also that here there was no accident, as that word is ordinarily used, but that the efficient, predominant or proximate cause of plaintiff's death, was the hypersusceptibility referred to, and without this the death would never have occurred.

The judgment of the court below is affirmed.