Fletcher v. Security Life & Trust Co.

BaRNHIll, J.

Are the terms “accidental death” and “death by external accidental means” synonymous ? Plaintiff’s right to recover depends, in a large measure, upon the answer.

Upon this question there is a distinct cleavage of judicial opinion. Some courts hold that they are synonymous — others that they are not. With us it is not a novel question. This Court has already adopted the view that there is a distinct difference in the meaning of the two terms and that the coverage of the policy is materially affected by the use of the one or the other.

Scott v. Ins. Co., 208 N. C., 160 , 179 S. E., 843 ;

Harris v. Ins. Co., 204 N. C., 385 , 168 S. E., 208 ;

Mehaffey v. Ins. Co., 205 N. C., 701 , 172 S. E., 331 . This interpretation, we think, is supported by the better reasoning and is in accord with the weight of authority.

“Accidental” means that which happens by chance or fortuitously, without intent or design and which is unexpected, unusual and unforeseen. 29 Am. Jur., 706 -7, sec. 931. “Accidental means” refers to the occurrence or happening which produces the result and not to the result. That is, “accidental” is descriptive of the term “means.” The motivating, operative and causal factor must be accidental in the sense that it is unusual, unforeseen and unexpected. Under the majority view the emphasis is upon the accidental character of the causation — not upon the accidental nature of the ultimate sequence of the chain of causation.

The insurance is not against an accidental result. To create liability it must be made to appear that the unforeseen and unexpected result was produced by accidental means. The stipulated payment is to be made only if the death, though unforeseen and unexpected, was effected by means which are external, violent and accidental.

Harris v. Ins. Co., supra; Mehaffey v. Ins. Co., supra; Scott v. Ins. Co., supra; Ins. Co. v. Belch, 100 Fed. (2d), 48 (overruling Ins. Co. v. Dodge, 11 Fed. [2d], 486, relied on by plaintiff);

Order of United Commercial Travel *151 ers v. Shane, 64 Fed. (2d), 55;

Landress v. Ins. Co., 291 U. S., 491 , 78 L. Ed., 934 . See also 13 A. L. R., 662, 39 A. L. R., 83, 59 A. L. R., 1295; 29 Am. Jur., 708 ; Cornelius on Accidental Means, pp. 7 and 8.

If tbe death resulted from the use of ordinary means voluntarily employed in a not unusual or unexpected way it is not produced by accidental means.

U. S. Mutual Accident Asso. v. Barry, 131 U. S., 100 , 33 L. Ed., 60 , Anno.

7

A. L. R., 1131. Hence, it has been held that unanticipated injuries or death resulting from the use of an anesthetic, Davis v. Ins. Co., 73 Fed. (2d), 330, or the administration of Butyn, Order of United Commercial Travelers v. Shane, supra, is not produced by accidental means.

In addition to the usual and expected sedative effect of the anesthetic injected into the spine of the deceased, there occurred an unexpected result due to the collapse of the respiratory system. If it be conceded that there was an accidental death caused by external means — the injection of the anesthetic — the fact still remains that the “means” was not accidental but was voluntarily authorized and was intentional.

Davis v. Ins. Co., supra;

96 A. L. R., 599;

U. S. Mutual Accident Asso.

v. Barry, supra;

29 Am. Jur., 714 .

But the plaintiff contends that she offered evidence tending to show that the head of the deceased was accidentally or unintentionally lowered after the anesthetic had begun to affect the respiratory system of the deceased and that the lowering of the head tended to further increase the risk and caused the death. She contends that this evidence brings her case within the provisions of the policy. This contention cannot be sustained. If we concede that this evidence tends to show “death by accidental means” no visible contusion or wound on the exterior part of the body was caused thereby. There is no causal connection between the wound made' by the injection and such “death by accidental means.” The wound was voluntarily made with the full consent of the deceased. Such death by accidental means arose out of circumstances which developed thereafter.

If the cause of the' death of plaintiff’s intestate is referred to the injection of the anesthetic, only an accidental death from an intentional act performed in the usual and ordinary way, with the full consent of the deceased, is established. The element of accidental means is absent. If we relate it to the accidental lowering of the patient’s head in the excitement caused by the sudden emergency which arose when his respiratory system became affected, there was no exterior visible wound or contusion caused thereby. Hence, the judgment of the court below is in accord with the division of thought on the subject to which we adhere.

Affirmed.