Summary
In Clarkson v. Union Mutual Casualty Co., 201 Iowa 1249, 207 N.W. 132, it was held that in a policy compensating disability resulting from accidental means, the means must have been involuntary and unintentional, and it was not sufficient that there was an accidental and unusual or unanticipated result only.
Summary of this case from Otey v. John Hancock Mutual Life InsuranceOpinion
February 9, 1926. Rehearing Denied June 21, 1926.
INSURANCE: Accident Insurance — "Accidental Means" Defined. An 1 injury caused by the intentional lifting of a log upon a wagon is one resulting from "accidental means" when such resulting injury was unexpected, undesigned, and not the usual or natural result of such an act. (See Book of Anno., Vol. 1, Sec. 8940, Anno. 4 et seq.)
PLEADING: Waiver — Belated Objections. The objection that a 2 petition does not state a cause of action may be deemed waived when made for the first time in a motion for a new trial. (See Book of Anno., Vol. 1, Sec. 11111, Anno. 38 et seq.)
TRIAL: Instructions — Failure to Request Elaboration.
et seq.)
TRIAL: Instructions — Failure to Request Simplification of Terms
Employed.
Headnote 1: 1 C.J. p. 429. Headnote 2: 31 Cyc. p. 82. Headnote 3: 38 Cyc. p. 1693. Headnote 4: 38 Cyc. p. 1689.
Appeal from Madison District Court. — W.S. COOPER, Judge.
ACTION upon an accident policy. Verdict and judgment for plaintiff, and defendant appeals. — Affirmed.
Harold S. Thomas, for appellant.
Wilkinson Wilkinson, for appellee.
I. This is an action upon an accident policy providing compensation for disability "resulting directly and exclusively of all other causes from bodily injury sustained during the life of this policy, solely through external, 1. INSURANCE: violent, and accidental means." Appellee accident testified that, while in the act of loading a insurance: heavy log upon a wagon, and after he had placed "accidental it upon his shoulder, he felt something give means" way, and he fell with the log against the wagon defined. and to the ground. The principal point urged by appellant is that the injury, which is not denied, did not "result solely through external, violent, and accidental means," and that, therefore, appellee is not entitled to recover compensation under the policy. The testimony of appellee was neither disputed nor supplemented by that of other witnesses, except that Dr. Fedders, a chiropractor, testified that appellee had a badly sprained back and a misplacement of the fourth lumbar vertebra. The various terms employed in the clause quoted from the policy have led to much discussion and apparent contrariety of opinion by the courts of this country. The difficulty does not arise so much from mere definitions of what constitutes accidental means as it does from the application of accepted definitions thereof to the facts of each particular case. Counsel cite many cases which, apparently, sustain their respective contentions.
All of our cases hold that it is not sufficient that there was an accidental and unusual or unanticipated result only, but that the means must have been accidental, — that is, involuntary and unintentional. If the injury suffered by appellee resulted from an act intentionally and purposely done, without more, then the disability that followed does not come within the plain terms of the policy. Many cases are cited by appellant, but we shall refer to but a few of them.
Carnes v. Iowa St. Trav. Men's Assn., 106 Iowa 281, affords little or no assistance in the decision of this case. There, the insured died from the effects of morphine voluntarily taken by him. It was uncertain, however, whether he took more than he intended or whether he misjudged the effect of the quantity taken. The court held that, if it was the former, his death was accidental, but, if the latter, it was not.
In Smouse v. Iowa St. Trav. Men's Assn., 118 Iowa 436, the insured was ordinarily in good health, but, at the time of the injury resulting in his death, he was convalescing from an attack of pneumonia, He arose in the morning, putting on his trousers and slippers, without removing his nightshirt. Later, he lay down on a couch and fell asleep. He was aroused suddenly by his wife, who informed him that some of his friends were coming, and requested that he hurry and dress. Arising from the couch in a somewhat dazed condition, he attempted to remove his nightshirt over his head. While his arms were raised above his head, he became entangled in the garment, exerted himself with some violence, and, while thus engaged, sustained a rupture of a blood vessel which filled his lungs with blood and caused his death within a few minutes.
In Feder v. Iowa St. Trav. Men's Assn., 107 Iowa 538, the death of the insured resulted from a ruptured artery, the rupture occurring while he was standing, reaching over a chair towards the shutters on a window which he attempted to raise. He was, at the time, suffering from tuberculosis.
Lehman v. Great Western Acc. Assn., 155 Iowa 737, Payne v. Fraternal Acc. Ass., 119 Iowa 342, and other cases are cited and relied upon by appellant. In the case at bar, appellee had raised the log to his shoulder, preparatory to placing it on the wagon. The fall occurred at the time he felt something give way. The strain of lifting the log was apparently over, and all that remained for him to do was to put it on the wagon. Just what appreciable instant of time elapsed between the sensation described by him and the fall cannot be determined, but the question presented, we think, was for the jury. The court instructed that, if appellee's injuries were the result of the exertion put forth in placing the log upon his shoulder, he could not recover. The clause in the policy has many times been before this court, and it will serve no good purpose to review the many authorities upon which we have relied. The cases cited supra are distinguishable from the case at bar, and this distinction is to be found in the settled rules of this state. We quote from Lickleider v. Iowa St. Trav. Men's Assn., 184 Iowa 423, as follows:
"The rule, clearly deducible from the overwhelming weight of authority, is that, when injury or death follows or results from a voluntary act of the insured, and the act is one which is not manifestly dangerous, but which is ordinarily done or performed without serious consequences to the doer, such result is caused by accidental means. This is nowhere better stated than by Sanborn, J., in Western Com. Trav. Assn. v. Smith, 85 Fed. 401, where he says: `An effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, * * * is produced by accidental means.'"
To the same effect, attention may be called to Budde v. National Trav. Ben. Ass., 184 Iowa 1219, and Rowe v. United Com. Trav. Assn., 186 Iowa 454.
It was within the province of the jury in this case to find that, while the act of loading the log was voluntary, the result was unexpected, undesigned, and not the usual or natural result to follow the act performed. The case is close, but we think it was for the jury.
II. At the close of appellee's testimony, an amendment to his petition, elaborating somewhat the allegations of accident, was filed. Appellant moved to strike the amendment because filed too late. This motion was overruled. This was 2. PLEADING: largely a matter of discretion on the part of waiver: the court below. It is now urged that the belated petition, as amended, did not allege facts objections. constituting an accident. This was made a ground of the motion for a new trial. The pleading was assailed in the manner stated only, and we are disposed to hold it sufficient.
III. Complaint is also made of Paragraph 4 of the court's charge, upon the ground that it did not require proof of accidental means. No further instruction was 3. TRIAL: asked by appellant on this point, and, while the instruc- instruction given might well have gone somewhat tions: further, we think it did not fail, in the failure to absence of a request for further instructions, request to sufficiently state the propositions which elaboration. appellee was required to prove, to make out a case.
Some of the objections urged to the instructions are not clearly covered by the exceptions preserved thereto.
Instruction No. 6, exception to which is also taken, is a trifle involved; but it clearly stated to the jury that it was not sufficient to entitle plaintiff to recover if the evidence disclosed nothing more than the fact that 4. TRIAL: plaintiff sprained his back as he lifted the instruc- log, or as he placed it on his shoulder, but tions: that there must be shown "some intervening and failure to supplementing accident" causing the injury. The request complaint of the instruction is that the simplifica- language is not clear, and must have been tion of confusing to the jury, and that the instruction terms was not based upon the evidence. It did, employed. however, embrace appellee's theory of the case. No instructions were asked by appellant, and we find no reversible error in the court's charge. In our opinion, the evidence justified the submission of the case to the jury. The judgment is affirmed. — Affirmed.
De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur.