TATE, Justice ad hoc.
Plaintiffs are the widow and children of Clarence E. Schonberg, to whom prior to his death defendant had issued two life insurance contracts. Plaintiffs, as beneficiaries under the policies, appeal from dismissal of their suit to recover double indemnity benefits thereunder in the total amount of $5,000 (defendant insurer having voluntarily paid the principal benefits).
The applicable policy provision pertinently states:
Plaintiffs contend that the decedents death during surgery resulted from "anaphylactic shock" produced by a very rare blood transfusion reaction. The principal legal issue of this appeal is, if so, whether such death resulted through "accidental means" within the intention of the policy, so as to entitle his beneficiaries to recover double indemnity benefits under the above-quoted clauses.
It may be well, before discussing the facts herein, to note that the coverage afforded for loss resulting from bodily injury effected through "external, violent and accidental means" has been construed by numerous cases, and that the authorities are in general agreement as to the coverage so afforded by provisions similar to those above quoted and involved herein, except as to what is meant by "accidental means." See 1 Appleman, Insurance Law & Practice, Section 393, p. 473 et seq.; 6 Cooley, Briefs on Insurance, 2d Ed., pp. 5233-5255; see, also, 5 Couch, Cyclopedia of Insurance Law, Section 1137, p. 3963 et seq., Section 1142, p. 4004 et seq.; see, also, 45 C.J.S. Insurance § 753, on page 777, § 754, p. 783, § 938c, p. 1076, § 938d, p. 1082; see, also, 29 Am.Jur., Sections
These cited treatises reflect general agreement that all three tests must be met before coverage is afforded; that is, the loss must be produced by "external", by "violent", and by "accidental" means. Such means must be the proximate cause of the resulting death, but a total absence of latent contributing causes is not required for coverage to be afforded. In construing "external means", it is only necessary that the cause of death or injury be external to the person, though it acts internally. "Violent" refers to some act not occurring in the ordinary run of things and may be fulfilled by any force whatsoever, however slight. But while the authorities concur that "the words `accident' and `accidental' mean that which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen", 29 Am.Jur. "Insurance" Section 931, p. 707, there is a sharp divergence (which will be discussed below at greater length) in the various jurisdictions as to whether or not the requirement that the loss result from accidental "means" necessitates that there be an unintentioned act as cause in addition to the unintended result of bodily injury eventuating in death.
With regard to the present case, although defendant successfully contended in the trial court that the death of defendant, a 67 year old man, resulted primarily from his bodily infirmities, the uncontradicted testimony of the six medical witnesses testifying (including the attending surgeon, the attending anesthetist, and the pathologist who completed an autopsy upon the decedent immediately following his death on February 19, 1948) shows that the cause of the decedent's death was anaphylactic shock due to a transfusion reaction. The medical testimony further shows that anaphylactic shock is an extremely rare reaction occurring because of some prior unpredictable sensitization of the patient to some component of the blood used in the transfusion.
Further, the medical testimony shows, without serious contradiction, that neither a latent heart condition to which decedent was subject, the prostatic condition for which the operation was being performed, the minor drop in blood pressure associated with operative shock, nor various other medical symptoms exhibited by decedent, caused or contributed to his death. Thus any bodily infirmity or disease to which the decedent was subject, not being a predominant cause of his death, does not defeat recovery by his beneficiaries herein. Lipscomb v. Equitable Life Assur. Soc., 205 La. 738, 18 So.2d 167; De Blieux v. Travelers Ins. Co., 185 La. 620, 630, 170 So. 14; see, also, Franklin v. Mutual Life Ins. Co., 216 La. 1062, 45 So.2d 624; Frerichs v. London & Lancashire Indem. Co., 169 La. 182, 124 So. 821.
But able counsel for defendant-appellee— conceding that if decedent's death resulted from anaphylactic shock, all other policy conditions were met—contends that recovery may not be allowed herein since, although the anaphylactic shock was the accidental result of the blood transfusion, the said blood transfusion itself (the "means" by which such bodily injury was effected) was an intentional act, and, therefore, could not be an accidental means so as to meet the requirement of double indemnity coverage.
Counsel cites and relies upon Parker v. Provident Life & Accident Ins. Co., 178 La. 977, 152 So. 583, 586, wherein construing an identical clause in a disability policy we stated:
In the Parker case, a workman pulling on a jackscrew sustained a hernia. We held (over the dissent of our late Chief Justice O'Niell and one other member) that he was not entitled to disability benefits predicated upon bodily injury sustained through "accidental means" because he intended to pull on the jackscrew, and thus the hernia as the unexpected or accidental result of an intended act was not produced by accidental means.
As the dissent points out, although specifically approving of our earlier decision in Brown v. Continental Cas. Co., 161 La. 229, 108 So. 464, 45 A.L.R. 1521, the holding in the Parker case was actually in conflict therewith.
In the Brown case the beneficiary of a policy providing for indemnity for loss of life by accidental means, was allowed recovery for the decedent's death by an unintentional overdose of chloroform and/or chloral. The decedent was a physician who used such substances to relieve headache and insomnia. He died, either from
The Parker opinion, on rehearing, attempted to reconcile its holding with the Brown case by stating that the decedent in the latter case intended to inhale only the usual quantity of chloroform and unintentionally inhaled too much (i. e., enough to cause his death rather than merely to induce sleep and relieve his headache).
As Chief Justice O'Niell pointed out in his dissent, under such an application of the verbal test used in the Parker case, recovery should likewise have been allowed therein because the workman in the Parker case did not intend to turn the jackscrew with so much force as to herniate himself.
Likewise, in the present case under such an application of the supposed distinction between an accidental means and an accidental result as set forth in the Parker case, recovery herein could be allowed upon the theory that although the blood transfusion was an intended act, it was not intended to transmit into the decedent's blood the reagent which produced such a violent and indeed fatal reaction.
Without discussion, but apparently upon such reasoning, in Lipscomb v. Equitable Life Assur. Soc. of United States, 205 La. 738, 18 So.2d 167, recovery was allowed upon a similar double indemnity clause for death resulting from food poisoning. (For, under the literal test the decedent intended to eat the food, so that the act or cause or "means" could be said to have been intentional and nonaccidental even though the result—the food poisoning—was accidental.)
Our brethren of the Orleans Court of Appeal, in Brackman v. National Life & Accident Insurance Co. of Tennessee, 5 So.2d 565, certiorari denied, likewise allowed recovery under double indemnity provisions when decedent died through sunstroke, although the United States Supreme Court in Landress v. Phoenix Mutual Life Insurance Company, 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382, had under identical circumstances denied the claim; commenting, 5 So.2d 570:
Both the Louisiana Supreme Court's Parker case and the United States Supreme Court's Landress case were decided in 1934 over the dissent of distinguished members of both courts. Both cases applied the test as to accidental means which was then followed by the majority of American jurisdictions. However, the test enunciated has in practice proved to be confusing and capable of such technical refinement as to be almost meaningless. See, Annotation Insurance—Accidental Means, 166 A.L.R. 469.
Our late Chief Justice O'Niell in his dissenting opinion in the Parker case stated, 178 La. 977, 152 So. 589:
Mr. Justice Cardozo, in his dissent from the attempted distinction recognized by the majority in the Landress case, had this to state, 291 U.S. 499-501, 54 S.Ct. 463-464 (citations omitted):
Because of such doubts as to the validity of a distinction between injury by accidental means and injury as an accidental result, as the above-cited treatises and annotations recognize, there is a growing minority of jurisdictions which prefer to construe a death resulting from bodily injury effected by accidental means as, simply, what in the ordinary language of laymen is considered to be an accidental death.
The rationale of the decisions in the jurisdictions rejecting or abandoning such a technical distinction is summarized in the Annotation 166 A.L.R. 469, at page 474. Basically, these decisions rely upon the principle that the terms used in an insurance policy should be construed in their ordinary and popular sense, and that any ambiguity therein should be construed in favor of the insured and against the insurer. As did the dissents above quoted, these decisions point out that death by accidental means and death as an accidental
The rationale of these decisions is in accordance with Louisiana jurisprudence regarding the interpretation of virtually all insuring clauses and insurance contracts other than the technical construction of the present clause upheld by the Parker case. For instance, in Seguin v. Continental Service Life & Health Ins. Co., 230 La. 533, 89 So.2d 113, 55 A.L.R.2d 1014, we held that the language in a health and accident policy should be construed in its plain, ordinary, and popular sense, rather than according to a technical meaning, especially since the companies contract through their agents with ordinary laymen who may not be expected to know the technical meaning of policy terms. See, also, LSA-C.C. art. 1946.
Rather than perpetuate the extremely technical distinction of the Parker case (so at variance with the usual rules of interpretation of insurance contracts utilized by Louisiana jurisprudence), which theoretically excludes from coverage accidental deaths that allegedly are only the "accidental results" of an intended act, we think it preferable to construe the present policy clauses in accordance with the common and usual significance attached by general and popular use to the language in question, LSA-C.C. art. 1946; so that, under these clauses, recovery is allowable for accidental death, whether or not the precipitating act which accidentally produces this fatality was itself voluntary and intended (subject, of course, to the other policy limitations.)
In those jurisdictions which have, as we do now, repudiated the distinction between "accidental means" and "accidental results", the test "is whether the average man, under the existing facts and circumstances, would regard the loss so unforeseen, unexpected, and extraordinary that he would say it was an accident." Preferred Accident Ins. Co. v. Clark, 10 Cir., 144 F.2d 165, 167. Applying the above test in factual situations similar to the present, where the insured died from an injection of novocaine to which he was hypersensitive, Mutual Life Ins. Co. of New York v. Dodge, 4 Cir., 11 F.2d 486, 59 A.L.R. 1290, or where the insured died from shock when a needle was inserted into his vein for a blood transfusion, American Nat. Ins. Co. of Galveston, Tex. v. Belch, 4 Cir., 100 F.2d 48, recovery of double indemnity death benefits was allowed pursuant to clauses similar to or identical with the present, the courts holding that "a result which is not the natural or probable consequence of the means which produced it, and which the actor did not intend to produce, is produced by accidental means," 100 F.2d 50, 51. We think that in the present case the decedent's death was produced by accidental means within the meaning of the policy as determined by the abovestated criteria based upon the ordinary (rather than a specialized or technical)
For the above and foregoing reasons, the judgment below dismissing plaintiffs' suit is reversed.
It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiffs, Mrs. Katie Gaskins, Widow of Clarence E. Schonberg, Mrs. Frances Ruth Schonberg, Wife of William J. Stewart, and Irvin H. Schonberg, and against the defendant, New York Life Insurance Company, in the full sum of $5,000, subject to the terms and conditions of payment of the policies sued upon and of valid trust agreements executed by the decedent in connection therewith.
It is further ordered, adjudged and decreed that there be legal interest on all unpaid amounts from the date when payment of such became due under the policies (that is, when due proof of decedent's death was received by defendant insurer), cf. Neider v. Continental Assur. Co., 213 La. 621, 35 So.2d 237, 2 A.L.R.2d 846, and trust agreements, until paid.
HAWTHORNE, J., absent.