Gardner v. United Surety Co.

O’Brien, J". One W. L. Gardner had for some time carried an accident policy in the Casualty Company of America, of which the Fletcher Company was the agent at Minneapolis. Gardner’s policy expired June 30, 1908, and about the fifteenth, of that month the Fletcher Company, which had ceased to be the agent of the Casualty Company, and had become the agent of the defendant United Surety Company, ten — 295 — dered to Gardner a policy of the defendant, which it requested him to accept in place of the one issued by the Casualty Company. With the statement that he would examine it, look over the contract, and let the agent know later, Gardner received the policy, and after his death, which occurred August 24, 1908, it was found with other papers in his safe. Mr. Lee H. Fletcher, the president of the Fletcher Company, testified that the policy was taken to Gardner by Mr. Emoff, a bookkeeper employed by the Fletcher Company. Emoff testified to handing the policy to Mr. Gardner as above stated; that he next called upon Gardner about the middle of July, and asked him for a cheek for the premium; that Gardner replied that he would not pay the premium in cash, but wanted the Fletcher Company, or Mr. Fletcher, to trade out the amount of the premium. Emoff replied that he had no authority to make such an agreement, but would report to Mr. Fletcher. He again saw Gardner about three weeks later, and told him that Mr. Fletcher would not take the premium in trade, whereupon Gardner replied that Mr. Fletcher would have to trade out most of it. He again told Gardner that he had no authority to agree to the proposition, whereupon Gardner handed him a hill-head, showing him what business he was in, and suggested that probably Mr. Fletcher could find something on there for him to do and trade out the premium in that way. Nothing further occurred until after Gardner’s death, when the premium was tendered and refused. The policy purported upon its face to insure W. L. Gardner for twelve months “on account of accident, as hereinafter described, from the thirtieth day of June, 1908, at twelve o’clock noon, standard time. * * * If the assured shall, during the term of this insurance, sustain bodily injuries effected solely through external, violent, and accidental means, suicide (sane or insane) not included, which injuries shall, directly and independently of all other causes, result in loss of life, limb, 'sight, or time as herein defined, the company will pay the amount below specified” — the minimum sum in case of death being $5,000. On August 23, 1908, Gardner, while in a stable, was kicked by a horse. His thigh was cut, and the evidence indicates he was thrown, — 296 — and struck his head against some part of the bam. After the accident Gardner appeared to be in great distress, and a physician was summoned, who, after dressing the wound, suggested, as stables were fruitful breeding places of tetanus germs, it might be well to administer an injection of anti-tetanus serum, although expressing the opinion that there was not one chance in a million that tetanus would ensue. Gardner consented, and towards the evening of the following-day the physician injected the serum. Immediately afterwards Gardner was seized with a fit of sneezing, and died within a few minutes. A post mortem examination disclosed that his lungs and bronchial tubes had been completely filled through regurgitation. Plaintiff claims that his death was due to suffocation. The post mortem also disclosed some injury to the head, which it was claimed was severe enough to have produced concussion of the brain. The plaintiff, the beneficiary named in the policy, introduced evidence tending to support her claim that the injury received by Gardner was sufficient to cause a shock, impairing his nervous system to such an extent that the regurgitation of the contents of his stomach ensued, causing his death by suffocation, and, further, that the injection of the serum was the proper treatment indicated after the accident, and, even if such treatment caused the filling of the lungs, his death was still by suffocation, of which the accident was the proximate cause; again, that death from suffocation, unless deliberately designed, is necessarily an accident insured against by the policy. The defendant claims that the policy was never delivered or accepted; that death resulted solely from the injection of the serum, which treatment was not necessarily indicated by the injury which Gardner received, but was at most because of a possible infection of the wound which the attending physician deemed it prudent to guard against; that such treatment was improperly administered to the insured, who was afflicted with hay fever, and the injection of the serum was the proximate cause of the death, and was not external, violent, or accidental within the meaning- of the policy. The learned district judge instructed the jury in effect that, the plaintiff having produced the policy, purporting to have been executed by the defendant, and its execution not being specifically denied — 297 — -in the answer, the burden of proof was, under the statute, upon the defendant to establish that the policy had not been executed and delivered. The court continued-: “And if upon this issue the evidence is evenly balanced between the parties, or if it preponderates, in favor of the plaintiff, you will find thereon for the plaintiff, and will otherwise find thereon for the defendant.” And further: “If the administration of the serum was rendered necessary and proper by the accidental injuries which the deceased received, and if the-accident and the serum, and they alone, caused the death, then the accident and the resulting death were such as the defendant insured against.” The plaintiff had a verdict, and from the denial of an alternative-motion for judgment notwithstanding the verdict or a new trial of the action the defendant appeals. 1. It is undisputed that the policy in question was properly signed by the defendant and tendered to the insured. It was found in his, safe with his other papers, and there can be no question that those facts established prima facie the execution and delivery of the policy. La Plant v. Pratt-Ford Greenhouse Co., 102 Minn. 93, 112 N. W. 889; Amos-Richia v. N. W. Mutual Life Ins. Co. (C. C.) 152 Fed. 192; Coffin v. N. Y. Life Ins. Co., 127 Fed. 555, 62 C. C. A. 415. The defendant contends that the court erred in instructing the jury that under such circumstances the statute placed upon the defendant the burden of proving that the policy contract was never fully executed by a valid delivery and acceptance of it. It is unnecessary to enter upon a discussion as to when or under what circumstances during the trial of an action the burden of proof shifts from one party to the other, or whether that is a proper method for describing the situation of the parties at any particular period during the course of the trial. The practical situation'was this: A duly signed policy issued by the defendant was after the death of the insured found amongst his papers. This, together with the admitted facts of its genuineness, established a prima facie presumption that it was in full force and effect; and unless the defendant by sufficient evidence overcame that presumption the jury were justi — 298 — fied in finding the policy to be a valid obligation of the defendant. Jones v. New York, 168 Mass. 245, 47 N. E. 92. Without going further, we would at least hold there was no prejudicial error in this portion of the charge. But we are inclined to believe that the evidence, taken all together, would have justified an instruction requiring the jury to find the policy to have been in effect at the time of the insured’s death. He had retained it from about the middle of June until the twenty-fourth of August. The discussions between the insured and Knoff seem to have assumed the acceptance of the policy, the only dispute being as to whether the premium was to be paid in cash or in trade; and from the testimony of Mr. Eletcher it seems the former policy was allowed to expire. There can be little question that, had Gardner lived and had the defendant brought suit to recover the premium, it could have recovered at least the portion earned to August 24, 1908. MacDonell v. Keller Mnfg. Co., 90 Minn. 321, 323, 96 N. W. 785. The fact that the premium was not paid would not of itself keep the policy from becoming effective. Jones v. New York, supra. 2. The jury was instructed that if the administration of the serum was rendered necessary and proper by the accidental injuries which the insured received, and if the accident and the serum, and they alone, caused his death, then the insured’s death was within the terms of the policy. In view of this instruction we cannot agree with plaintiff’s contention that, if the evidence would have sustained a finding that the filling of the lungs resulted from the nervous shock which the deceased received when struck, the verdict should be sustained; for the language of the instruction was clearly to the effect that, if the treatment was proper and death resulted from it, the plaintiff could recover. Nor do we agree with plaintiff’s contention that death from suffocation is in every case, except where such result is intended, to be regarded as produced by external, violent, and accidental means. We think this appeal must be determined by considering whether the injuries received by the deceased on August 23 were the proximate cause of his death upon the following day; that is, was the administration of the serum an independent and supervening cause of death, or is it to be considered one of the possibilities — 299 — within the contemplation of the parties at the time the contract was entered into ? Accident policies are intended to cover a well-defined area. To clearly define its liability, the defendant by this policy promised indemnity for injuries received through “external, violent, and accidental means.” It would have been almost impossible to enumerate the consequences which might result from an accident, but it was comparatively easy to describe the character of the accident against the results of which the policy holder is indemnified. The language of the policy does this, and when an insured is injured by “external, violent, and accidental means” the indemnity promised is for every injury which results therefrom. The parties contemplated that the individual injured would act as an ordinary normal person, and that r physician would be called, whose judgment would be relied upon for the treatment to be administered; and where, as in this case, a reputable member of the medical profession was called, and his treatment was regular, ordinary, and in accordance with the teachings of his profession, there can, it seems to us, be no escape from the conclusion that the treatment administered was a natural and anticipated result of such injury, and that, although death might not have resulted, had no injection of serum been made, the original injury, confessedly received under conditions within the terms of the policy contract, must be held to be the proximate cause of death. The reasoning of this court in White v. Standard Life & Accident Ins. Co., 95 Minn. 11, 103 N. W. 735, 884, sustains this view although the facts in that case were entirely different from those in the case at bar. The evidence did not conclusively show that, even if the insured was afflicted with the disease known as “hay fever,” the injection of the serum would be fatal; and it follows that the court properly instructed the jury that the plaintiff was entitled to recover if the treatment given was rendered necessary and proper by the injuries, and that death, resulted solely from the injuries and the injection -of the serum. Order affirmed.