American Nat. Ins. Co. of Galveston v. Belch

100 F.2d 48, 1938 U.S. App. LEXIS 2573

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 29, 1938
• Docket: 4327
• Status: Published

Opinions

SOPER, Circuit Judge.

This action by the beneficiary named in a life insurance policy in the sum of $3,000 which was removed to the District Court on the ground of diverse citizenship, is based upon a rider attached to the policy in which the Insurance Company agreed to pay $6,000 in the event of the death of Clarence John Belch, the insured, being caused by bodily injuries effected exclusively and wholly by external, violent and accidental means, occurring within sixty days after the injury and before the insured reached the age of sixty years. The evidence showed that death occurred under most distressing and unexpected circumstances. A child of the insured was a patient in the hospital and was in need of a blood transfusion. The father, then thirty-four years of age, finding that his blood was. suitable, submitted himself for the purpose. He went to the hospital and walked up three flights of stairs to the operating room. The physician took his blood pressure, examined his heart and found him to be normal. He then took off his coat and lay down upon the operating table. The physician washed the insured’s arm with antiseptic, applied a tourniquet and injected a needle into a vein, whereupon, before a tablespoon of blood had been withdrawn, the insured died. The undisputed evidence is that the insured was in good health at the time, that the operation was performed according to the customary and approved routine, that every act of the doctor and of the insured was voluntary and intentional, and that nothing unforeseen, unusual or accidental occurred in the manner in which the operation was performed. In short, although the death was a totally unexpected result, the acts which preceded it were done with due care and with specific intent. It was the opinion of the physician who testified for the plaintiff, that the death was caused by shock although he was not certain that it was not caused by heart failure.

At the conclusion of the evidence, the defendant moved the court for a directed verdict on the giound that the plaintiff had failed to show that the death was caused by bodily injuries effected exclusively and wholly by external, violent and accidental means; but the judge, without objection of either party, allowed the case to go to the jury with the understanding that the point raised by the defendant should be reserved for further consideration after the verdict. The jury found for the plaintiff and thereafter the judge, having considered the matter in a carefully prepared opinion, directed that judgment be entered thereon for the plaintiff in the usual course.

In so doing, the judge referred to the opinion of this court in Mutual Life Ins. Co. v. Dodge, 4 Cir., 11 F.2d 486, 59 A.L.R. 1290, wherein it was held that the death of an insured from a local administration of novocaine preliminary to a tonsillectomy caused by the hypersusceptibility of the insured to the drug, was a death by accidental means within the meaning of a clause in an accident policy of similar •import to that now under consideration. In ■reaching this result we cited with approval the reasoning of Judge Sanborn in Western Commercial Travelers’ Ass’n v. Smith, 8 Cir., 85 F. 401, 40 L.R.A. 653, that an •effect which is not the.natural and probable consequences of the means producing it, and is not intended, and cannot be reasonably anticipated, is produced by accidental means; but in Landress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382, the Supreme Court, Mr. Justice Cardozo dissenting, reviewed the authorities and disapproved the decision in the Dodge Case, holding that it is not enough to establish liability in such a case that death is accidental in the understanding of the average man, but that the distinction between accidental means and accidental result must be recognized, so that liability exists only if the bodily injury, though unforeseen, is effected by means which are external and accidental.

The law of Virginia, as declared by .its legislature or by its highest court, is .decisive in a case of this kind under the doctrine recently announced in Erie R. Co. v. Tompkins, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; and it becomes our duty to “search for and apply the entire body of substantive law governing an identical action in the state courts”. Ruhlin v. New York Life Ins. Co., 58 S.Ct. 860, 862, 82 L.Ed. 1290. But no statute or decision of the state has been found which bears upon the question involved. It is true that our decision in Mutual Life Ins. Co. v. Dodge, supra, is referred to with apparent approval in the decision of the Supreme Court of Virginia in Newsoms v. Commercial Casualty Ins. Co., 147 Va. 471, 137 S.E. 456, 52 A.L.R. 363; but in that case death resulted from ptomaine poisoning due to the unintentional consumption of tainted food and was therefore caused by accidental means as those words are defined by the Supreme Court of the United States. Under these circumstances we follow the •rule laid down by the Supreme Court in Landress v. Phoenix Mutual Life Ins. Co., supra, and' since it is clear that in the instant case death was not produced by accidental means as there defined, the judgment of the District Court must be reversed.

Reversed.