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North Amer. Acc. Ins. Co. v. Henderson

Supreme Court of Mississippi, Division B
Jan 24, 1938
177 So. 528 (Miss. 1938)

Summary

In Henderson, the plaintiff sought damages for his continuing physical disability, even though surgery would have enabled him to return to work and thus mitigate his damages.

Summary of this case from Munn v. Algee

Opinion

No. 32907.

December 13, 1937. Suggestion of Error Overruled January 24, 1938.

1. INSURANCE.

The word "accidental," as used in accident policies, has meaning which is understood in common speech and which is given in standard dictionaries, which is undesigned, unintended, unexpected, and unpremeditated.

2. INSURANCE.

Under accident policies covering injuries occurring through "accidental means," an undesigned, unintended, unexpected, or unpremeditated deflection from or interruption of intended purpose, as by stumbling, tripping, or slipping, is an accident by "accidental means," unless deflection or interruption was obviously inevitable or was infected with negligence so gross as to be tantamount to intention.

3. INSURANCE.

Where insured, as he stepped from a loading platform to rear gate of truck with an ice cream container in each hand, slipped on gate and was thrown upon corner of truck in such manner as to cause an inguinal rupture, such injury was effected through "accidental means" within meaning of health and accident policy.

4. INSURANCE.

Where insured who was suffering from inguinal hernia was financially unable to undergo curative operation, his failure to do so did not preclude recovery of total disability benefits under health and accident policy on ground that he was not totally disabled because an operation would result in complete cure.

5. DAMAGES.

An injured person is required to use reasonable care and effort to prevent or minimize the injury.

6. DAMAGES.

The rule that injured person should use reasonable care and effort to prevent or minimize injury is one of reason, and reasonableness has become exhausted and rule is inapplicable where injured person is powerless to take needed step.

7. INSURANCE.

Where no medical attention other than an operation would help insured who was suffering from an inguinal hernia, and he was financially unable to undergo operation, his failure to receive regular medical attention, as required by health and accident policy, did not preclude him from recovering total disability benefits.

APPEAL from the circuit court of Jones county. HON.W.J. PACK, Judge.

Watkins Eager, of Jackson, for appellant.

Appellee's accident was not the result of accidental means. It is universally the rule that, in cases of this nature, where the burden is upon the insured to show that his injuries were the result of "external, violent and accidental means," that the insured must show not only that the resulting injury was an accident, but that the means which brought about the injury was also accidental. It is the appellant's contention in this case that the appellee was guilty of the grossest sort of negligence in stepping from the platform onto the narrow rail or ledge, on the rear end gate of the truck, with the heavy cans of ice cream in his hands. Being guilty of negligence himself there was not present any accidental means.

Rock v. Travelers Ins. Co., 156 P. 1029; 1 Cyc. 289; Price v. Occidental Life Ins. Co., 169 Cal. 800, 147 P. 1175; Whitehead v. Railway Mail Assn., 269 Fed. 25; Maryland Cas. Co. v. Spite, 246 Fed. 817; Carswell v. Railway Mail Assn., 8 F.2d 612; Baldwin v. North American Acc. Ins. Co., 22 F.2d 111; Pope v. Prudential Life Ins. Co. of America, 29 F.2d 185; Nickman v. New York Life Ins. Co., 39 F.2d 763; Parker v. Provident Life Acc. Ins. Co., 178 La. 977, 152 So. 583; Smith v. Metropolitan Life Ins. Co., 155 So. 789; Stone v. Fidelity Cas. Co. of New York, 133 Tenn. 672, 182 S.W. 252, L.R.A. 1916D 536; Lavender v. Volunteer State Life Ins. Co., 171 Miss. 169, 157 So. 101.

The appellee's injury was the direct and proximate result of his voluntary act, and was not, in any sense, the result of accidental means.

Appellee cannot be said to be suffering from a total and permanent disability when submission to a minor operation would result in complete cure.

Finkelstein v. Metropolitan Life Ins. Co., 270 N.Y.S. 598; U.S. v. Gower, 71 F.2d —; Equitable Life Assur. Society v. Singletary, 71 F.2d 409; Cody v. John Hancock Mutual Life Ins. Co., 163 S.E. 4, 86 A.L.R. 354; Liberty Life Assur. Society v. Downs, 112 So. 484; U.S. v. Horn, 73 F.2d 770; Deadrich v. U.S., 74 F.2d 619; Prevette v. U.S., 68 F.2d 112; U.S. v. Ivey, 64 F.2d 653; Falbo v. U.S., 64 F.2d 948; U.S. v. Walker, 77 F.2d 415; Liberty Life Assurance Society v. Downs, 112 So. 484.

Appellee forfeited his right to recovery in this case because of failure to receive regular medical attention.

American Bankers Ins. Co. v. White, 158 So. 346, 171 Miss. 677.

Leonard B. Melvin, of Laurel, for appellee.

The courts of Tennessee hold that where the acts are intentional or the means of the injury are intentional, the insurer will not be liable, but if there is some intervening cause, as a slip or something unexpected that causes the insured to lose control of himself, then the means are accidental within the meaning of the policy.

Stone v. Fidelity C. Co., 133 Tenn. 672, 182 S.W. 252.

The courts of Iowa, recognizing that the criterion on which the courts determine the liability of the insurer like the one at bar, says there should be some unforeseen incident occurring. Appellee meets this requirement in his uncontradicted evidence by stating that his foot slipped, and that he fell and struck himself on the corner of the truck and was thereby injured. Appellee's foot slipping was the unforeseen and unexpected incident that brings the case at bar within the rule of the Iowa courts.

McCarty v. Travelers Ins. Co., 7 A.L.R. 1138.

In the case at bar, appellee slipped and lost control of himself, and for this reason the means of his injury were accidental and within the meaning of the policy.

Preferred Acc. Ins. Co. v. Patterson, 130 C.C.A. 175, 213 Fed. 595, 7 A.L.R. 1139.

Appellee has endeavored in his brief to analyze as best as possible the many authorities cited by appellant in its brief. After examining these authorities, I am unable to find one of them that holds that where the testimony shows that the insured slipped, stumbled or some unforeseen and unexpected incident happened that caused the insured to lose voluntary control of himself that he was not entitled to recover. There are many authorities, which appellee will now cite that hold that even though there is no slip, stumble or some unforeseen and unexpected incident which caused the insured to lose voluntary control of himself, yet he is entitled to recover.

Rose v. Commercial Mut. Acc. Co., 12 Pa. Super. 394; Summers v. Fidelity Mutual Aid Assn., 84 Mo. App. 605; Atlanta Acc. Assn. v. Alexander, 104 Ga. 709, 42 L.R.A. 188, 30 S.E. 939; U.S. Mut. Acc. Assn. v. Barry, 33 L.Ed. 60, 9 Sup. Ct. Rep. 755; General Acc. Life Assur. Corp. v. Meredith, 141 Ky. 92, 132 S.W. 191; Patterson v. Ocean Acc. Guarantee Corp., 25 App. D.C. 46; Carswell v. Railway Mail Assn., 8 F.2d 612; Budde v. National Travelers Ben. Assn., 184 Iowa 1219, 169 N.W. 766; North American Life Acc. Ins. Co. v. Burroughs, 69 Pa. 43, 8 Am. Rep. 212; 42 A.L.R. 244; 14 A.L.R. 790; 35 A.L.R. 1191; Pledger v. Business Men's Assn., 197 S.W. 889; Campbell v. Aetna Life Ins. Co., 222 S.W. 778; Husbands v. Indiana Travelers Acc. Assn., 130 N.E. 874; 14 R.C.L., page 1239, sec. 419.

The best reasoned case that appellee has been able to find, and a case wherein all of the authorities are cited and the holdings given, is the case of Lickelieder v. Iowa State Traveling Men's Association, 166 N.W. 363, 168 N.W. 884, 3 A.L.R. 1295.

These many decisions lead appellee to the inevitable conclusion that the facts of the accident here sued on bring this case within the ruling of these decisions; that the means causing the accident were accidental means; that when the appellee testified that he slipped and fell and that he struck the corner of a steel truck, that this was the cause of his accident. Therefore, appellee respectfully submits that he should be entitled to recover under the terms of his policy.

Since appellant contends that it is only necessary that appellee submit himself to a minor operation, and the evidence herein clearly defines the operation necessary to cure him, if in fact it will cure him, as a major operation, defined by the medical testimony in this case, I am unable to understand how the contention of appellant can avail them any good in this court.

Liberty Life Assur. Society v. Downs, 112 So. 484.

Stedams Medical Dictionary, 1930 Edition, page 732, defines a major operation as an operation of great extent or involving vital organs; thereby exposing the patient directly to danger of death; and defines a minor operation as an operation to slight extent and not in itself dangerous to life.

The policy herein sued on uses the words total and continuous disability and the cases cited by appellant in its brief are only to cases that use the words total and permanent disability. This court has many times construed a policy using the words "total and permanent disability" and has in a few instances (Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114; Equitable Life Ins. Society v. Serio, 124 So. 485; Metropolitan Life Ins. Co. v. Lambert, 125 So. 750) construed policies of the same provision as herein sued on, and in these cases this court has held that the words "total and continuous" are synonymous with the words "total and permanent." Counsel for appellant do not seem to here question the fact that appellee is totally disabled, and that he has been totally disabled over the period for which this suit was brought, but they state that he could be cured by a simple operation, which statement of theirs is contrary to the evidence in this case.

The rule is that the jury is the judge as to whether or not under all of the facts of each particular case, that the insured, or injured, should be required to take a simple operation. I have not been able to find where any decision has required the insured to subject himself to a major operation.

17 C.J., 780.

Appellee, therefore, respectfully submits that the evidence in this case shows that the operation is a major operation and the results uncertain, and that the evidence further shows that appellee has not been financially able to obtain the operation necessary; and appellee respectfully submits that the court should not permit an insurance company where liability exists to require the insured to submit himself to a major, serious and uncertain operation. For an insurance company to be permitted to take this position would mean that disability insurance would be practically worthless, and it would also mean that unless a person was totally disabled, and also hopelessly disabled, he could never draw the benefits of disability insurance.

The policy now under consideration only requires that the insured shall be under the professional care of a legally qualified physician, and does not require any definite number of days between the visits.


Appellee was insured under a health and accident policy issued by appellant, and which was in full force on the day of the injury hereinafter mentioned. The principal provision of the policy, insuring against injury by accidental means, was and is as follows: "If the Insured, while this policy is in force, shall sustain personal bodily injury, which is effected directly and independently of all other causes through external, violent and accidental means and which injury causes at once total and continuous disability and prevents the Insured from engaging in any and every kind of business or labor pertaining to his occupation, the Company will pay," etc.

On August 10, 1936, the appellee was in the employ of an ice cream company, his duties being to load the ice cream containers upon a truck, to drive the truck to the various places of delivery, to there unload and to collect for the deliveries made. On that morning, appellee had in the usual way backed his truck up nearly against the loading platform, and, with a container in each hand, he stepped from the platform to the rear gate of the truck, when, in so doing, his foot slipped on the gate and his body was thrown upon the corner of the truck in such a violent manner as to cause an inguinal rupture, the injury being so serious that appellee has been continuously disabled from engaging in his said occupation or any other occupation.

Proof of loss or injury was duly made but the insurer denied liability beyond a small sum, and, on April 14, 1937, appellee instituted his action at law for the recovery of the monthly indemnity due up to that date. On the trial he recovered judgment and the company has appealed.

Three contentions are presented by appellant and are urged as reasons for the reversal of the judgment. The first is that "appellee's accident was not the result of accidental means." It is urged that not only must the injury itself be accidental, but that the means which brought about the injury must be accidental, there being a distinction between accidental injury and injury resulting from accidental means. Lavender v. Life Ins. Co., 171 Miss. 169, 183, 157 So. 101. Appellant says that, when appellee stepped from the platform to the rear gate of the truck, he did exactly what he intended to do, and in stepping from the platform to the top of the gate, which top was only about two inches wide and of steel construction, he knew or should have known that his foot was liable to slip on the gate; that the slipping of his foot was the natural and probable consequence of his said deliberate act; wherefore, the means of the injury was not accidental, but was the proximate consequence of appellee's own negligence, and that he is not entitled to recover.

If a man jump from a four-story window to the pavement below, deliberately intending to do so, this is no accident but is suicide, and is not covered by an accident policy. But if the same person had intended to look out from the window, and, in approaching it, tripped over some object on the floor and was thereby thrown out of the window, this would be an accident, although the party was negligent in not seeing the object over which he tripped. It is apparent, therefore, that the test to be applied is not that of negligence or contributory negligence, as technically known in the law of torts, so long as simple negligence only is involved; but the real test is that which is understood in common speech, so that the word "accidental" has the meaning given in the standard dictionaries of our language, and that is, undesignated, unintended, unexpected, unpremeditated. And when an accident policy refers to "accidental means" it must be understood that, although the insured may be attempting to use the precise means which he intended to use, yet when and while in that use, and during the course of the attempted execution of the purpose thereof, some undesigned, unintended, unexpected, or unpremeditated deflection from, or interruption of, the intended use or purpose occurs, as by stumbling or tripping or slipping, this is an accident by accidental means, unless and except the deflection or interruption was obviously inevitable, or was infected with a negligence so gross as to be tantamount to intention.

We are of the opinion that the facts of the case now before us do not justify the application of either of the qualifications or exceptions stated at the close of the foregoing paragraph; and that the insurer is liable under the policy. The leading cases are cited in Lickleider v. Iowa, etc., Ass'n, 184 Iowa 423, 166 N.W. 363, 168 N.W. 884, 3 A.L.R. 1295, and Lewis v. Ocean, etc., Corporation, 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129.

The second point taken by appellant insurance company is that appellee cannot be said to be suffering from a total and continuous disability when submission to a minor operation would result in a complete cure. All the doctors who testified were in agreement that the operation for the cure of an inguinal hernia is a major operation and is attended by danger, but that in 90 to 95 per cent. of such cases a complete cure results, and that the danger of death is remote. We are relieved, however, of a discussion as to when and under what circumstances an insured is obliged to submit to an operation, because it is undisputed in this case that appellee has been at all times, and still is, willing to take the risks and undergo the operation, but has been financially unable to do so, it being shown by the undisputed evidence that the cost of such an operation, including hospital fees and attendance, would be about $265, and that appellee is without any such means.

Appellant asserts in its brief that appellee's financial condition is an immaterial matter and should not be considered as an element in this case. Appellant cites no case in support of that assertion, and, if there were such a case, we could not follow it. The duty to submit, under proper circumstances, to an operation, is no more than a corollary of the familiar rule applicable to injuries generally, whether in tort or in contract, that the injured person shall use reasonable care and effort to prevent, or minimize, the injury. But the rule is one of reason, and, if the injured person be powerless to take the needed step, reasonableness has become exhausted and the applicability of the rule is at an end. Under this rule it has been held that "plaintiff's lack of funds to meet the situation presented may excuse efforts to lessen the injury." 17 C.J., pp. 771, 772, section 97. We agree with this statement as applicable to insurance accident cases.

The third point urged by appellant is that appellee has forfeited his right to recovery in this case because of appellee's failure to receive regular medical attention, and appellant points to the following provision in the policy: "Indemnity will not accrue thereunder in excess of the time insured is, by reason of the injury or sickness or disease, under the professional care of a legally qualified physician or surgeon other than insured."

The only case cited by appellant in support of its contention on this point is American Bankers' Ins. Co. v. White, 171 Miss. 677, 158 So. 346; but in that case the policy requirement was materially different. Moreover, that case was not one of permanent disability, and the court called attention to the fact that provisions in accident and health policies for regular attendance of a qualified physician have no application to an established permanent disability, since it would be unreasonable to assume that in such a case regular medical attention was contemplated. In the case now before us, all the physicians who were consulted testified that there was nothing which medical attention could do for appellee except by a surgical operation, and, until that was done, the disability would continue unabated, the only other means of alleviation being a truss which appellee had tried but was unable to wear. Since there was nothing that a physician, by professional care, could do for the appellee, short of surgery, regular attendance would have been without use or purpose. When the reason for a contract provision disappears, the provision itself disappears so far as being a material element in the legal problems at hand.

Affirmed.


Summaries of

North Amer. Acc. Ins. Co. v. Henderson

Supreme Court of Mississippi, Division B
Jan 24, 1938
177 So. 528 (Miss. 1938)

In Henderson, the plaintiff sought damages for his continuing physical disability, even though surgery would have enabled him to return to work and thus mitigate his damages.

Summary of this case from Munn v. Algee

In North American Accident Insurance Company v. Henderson, 180 Miss. 395, 177 So. 528, and in New York Life Insurance Company v. Wood, 182 Miss. 233, 180 So. 819, this Court defined the word "accidental", as used in the policies involved in those cases, as meaning undesigned, unintended, unexpected, and unpremeditated.

Summary of this case from Womack v. E.M.L. Ins. Co. of Wisconsin

In North American Accident Ins. Co. v. Henderson, Miss., 177 So. 528, 529, the word is defined thus: "If a man jump from a four-story window to the pavement below, deliberately intending to do so, this is no accident but is suicide, and is not covered by an accident policy.

Summary of this case from New York Life Ins. Co. v. Wood
Case details for

North Amer. Acc. Ins. Co. v. Henderson

Case Details

Full title:NORTH AMERICAN ACC. INS. CO. v. HENDERSON

Court:Supreme Court of Mississippi, Division B

Date published: Jan 24, 1938

Citations

177 So. 528 (Miss. 1938)
177 So. 528

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