
    Ridgeley Protective Assn. v. Smith.
    (Decided June 21, 1932.)
    
      Mr. A. R. Johnson and Mr. Wayne Elkins, for plaintiff in error.
    
      Messrs. Corn, Jenkins, Hopkins & Collier, for defendant in error.
   Mauck, P. J.

Hattie E. Smith brought her action in the common pleas alleging that on April 17, 1924, the Ridgeley Protective Association issued to her husband, William A. Smith, a policy of insurance on the life of said Smith in which the plaintiff was named as beneficiary; that said policy insured against the accidental death of said Smith in the sum of $1,000; that the insured died April 27, 1929, as the result of accidental injuries, entitling her to recover the sum mentioned. Subsequently an amendment was filed to the petition in which it was alleged that the injuries which caused the death of the insured “were produced by his handling hot iron blocks, dragging three hundred pound boxes a distance from eight to ten feet, and while so engaged was exposed to extreme artificial heat and the absence of ventilation, causing heat strokes or cramps, from the effects of which he died. ’ ’ A demurrer to the petition was overruled. An answer was then filed setting up several defenses. Issue was joined by a reply. Trial was had by a jury, and, from the judgment entered upon a verdict for the plaintiff, error is prosecuted to this court.

The defendant denied the right of the plaintiff to maintain her action because it claimed that the plaintiff had failed to make proof of loss at the time prescribed in the policy. The record shows that the plaintiff in due time notified the defendant of the death of the insured and that the insurer thereupon wrote her a letter that could be interpreted as a denial of liability. Whether it was a denial of liability was submitted tó the jury, and the verdict indicates that the jury found it to be such denial. Under those circumstances the defendant waived the provision of the policy which required proof of loss. 22 Ohio Jurisprudence, 744.

The policy sued upon undertook to afford indemnity against several different sorts of losses, such as total accident, partial accident, sickness, and certain named specific losses, including death. Paragraph A, covering total accident indemnity, read as follows:

“A. For disability resulting solely from accidental injuries due to a violent, external and involuntary cause, and leaving visible marks of wounds upon the body of the insured, which shall totally and continuously disable the insured, the association will pay for such total disability at the rate of twelve dollars per week,” etc.

Paragraph C, covering specific losses, among which is the loss of life, and under which plaintiff is claiming in this case, read as follows:

“C. If accidental injuries due to violent external and involuntary causes, leaving visible marks of wounds upon the body of the insured shall immediately and continuously from the date of the accident totally disable the insured, and result in any of the following losses within 80 days from the date of the accident, the association in lieu of any other indemnity, and provided notice of such injury is mailed to the association within twenty days from, the date of the accident, will pay for one, and only one of the following losses * * * for loss of life $1,000.”

The record shows that the insured was suffering from diseases of the heart. The death certificate shows that he died of angina pectoris, and it is beyond dispute that the condition of his heart at least contributed to and hastened his.death. The insurer claims that it is not liable unless the death of the insured can be solely attributed to the accident, if accident there was. This contention is without merit. It is true that under paragraph A the company only bound itself to indemnify for disabilities by paying weekly installments to the insured during his life for such total disabilities as solely resulted from accidental injuries, and it is possible that, if the insured had survived and had sought indemnity under that paragraph of the policy, his claim might have been defeated on the ground that his condition was contributed to by his diseased heart. The plaintiff in this case, however, is claiming nothing under paragraph A and the word “solely” appearing in that paragraph does not appear in paragraph C, under which plaintiff claims. Under the latter paragraph, if the insured suffered an accident as defined in the policy, such accident need not be the sole cause of death in order that liability follow. If the accidental injury was aggravated by the diseased condition of the patient, and such diseased condition contributed to and hastened death, liability was not avoided by any of the provisions of the paragraph covering the loss of life.

It is further urged by the insurer that the amendment to the petition fails to plead that the insured suffered in an accident and that the testimony affirmatively shows that no such accident was suffered. The insured was 57 years old and had arteriosclerosis. He was engaged in hard work in a hot place. The thermometer registered ninety degrees or more. His work required the rapid handling of hot iron plates, his dragging boxes containing as much as three hundred pounds of metal, and under these circumstances he developed heat cramps or a heat stroke. He became sick, was taken home, the muscles of his arms and chest became distended. He died some four days later. He suffered no blow of any kind, nor did he fall or come in contact with any tangible object. The best that can be said for plaintiff’s case is that his death can be attributed to a heat stroke induced by overexercise in an excessively hot place. The immediate question is whether or not under the terms of this policy, and particularly paragraph C, his death can be said to have been due to an accidental injury due to violent and external causes.

Legal literature does not deal extensively with heat strokes where artificial heat has been the injuring agency, but there are numerous cases which deal with the liability of an insurer against accidental injuries resulting from sunstroke induced by direct solar rays. From a technical pathological standpoint, a sunstroke is not an accident, but a disease called insolation or thermic fever. Richards v. Standard Accident Ins. Co., 58 Utah, 622, 200 P., 1017, 17 A. L. R., 1183; Dozier v. Fidelity & Casualty Co. of N. Y., (C. C.), 46 F., 446, 13 L. R. A., 114, 581, 22 L R. A., 620. The fact, however, that in the lay mind a sunstroke was generally considered to be an external and violent injury led accident insurance companies to make special provisions for indemnity in case of sunstroke, and those provisions have occasioned much litigation and many reported cases. Typical of these special indemnity clauses is that found in Bryant v. Continental Casualty Co., 107 Tex., 582, 182 S. W., 673, L. R. A., 1916E, 943, Ann. Cas., 1918A, 517, as follows:

“If sunstroke, freezing, or hydrophobia, due in either case to external, violent and accidental means, shall result, independently of all other causes, in the death of the insured * * * the company will pay,” etc.

Under such a clause it has been held in some of the cases that there must have been some accident that preceded and induced the sunstroke to give rise to liability. Continental Casualty Co. v. Pittman, 145 Ga., 641, 89 S. E., 716; Elsey v. Fidelity & Casualty Co. of N. Y., 187 Ind., 447, 120 N. E., 42, L. R. A., 1918F, 646. In other cases it has been held that the sunstroke is of itself such an accident that, where death results, liability arises. Bryant v. Continental Casualty Co., supra; Richards v. Standard Accident Ins. Co., 58 Utah, 622, 200 P., 1017, 17 A. L. R., 1183; Pack v. Prudential Casualty Co., 170 Ky., 47, 185 S. W., 496, L. R. A., 1916E, 955.

In the case at bar we have no special provision for sunstrokes, but we must rely for a determination of the rights of the parties on the paragraph C already quoted. In the ábsence of any provision covering sun-strokes, Dozier v. Fidelity & Casualty Co. of N. Y., (C. C.), 46 F., 446, 13 L. R. A., 114, 581, 22 L. R. A., 620, holds that no recovery can be had because the sunstroke itself is not an accident. Continental Casualty Co. v. Bruden, 178 Ark., 683, 11 S. W. (2d), 493, 61 A. L. R., 1192, is to the contrary. It appears that the preponderant view is that, inasmuch as in the lay mind a sunstroke is an accident, a policy containing a sunstroke provision such as the one above quoted should be construed to create liability in case of sunstroke even though no accident occasions the stroke, and that the stroke itself is to be deemed so far an accident as to entitle the insured to the special indemnity. As there seems to be no essential difference between sunstroke and freezing, and as freezing has been held to be an accident in this state, Commonwealth Casualty Co. v. Wheeler, 13 Ohio App., 140; National Life Ins. Co. v. Patrick, 28 Ohio App., 267, 162 N. E., 680, we are of the opinion that a sunstroke would be deemed an accident under the law of this state, which requires in a doubtful case that interpretation of a policy which is most favorable to the insured.

In the instant case the plaintiff, however, requires us to go further and not only read into the policy a liability for sunstroke in the popular sense of that term, but to so construe the term so interpolated as to embrace heat strokes induced by artificial heat as well as those induced by the sun’s rays. There may be no essential pathological difference in being overcome by heat, whether from the direct rays of the sun or from artificial heat. See authorities' collected in Continental Casualty Co. v. Johnson, 74 Kan., 129, 85 P., 545,. 6 L. R. A. (N. S.), 609, 118 Am. St. Rep., 308, 10 Ann. Cas., 851. That, however, is not the popular conception of a sunstroke. We cannot, therefore, read into this policy a liability for sunstroke because the parties contracted with reference to the popular conception of a sunstroke, and then give to the term ‘ ‘ sunstroke” the broad, all-inclusive, but technical definition that would include heat cramps caused by intense exertion in a hot room.

To sustain recovery in this case would strain the contract sued upon beyond all reason. If a man with a diseased heart who subjects himself to arduous exertion in a room heated to ninety degrees can be said from those facts to have suffered an accident because he collapses, a weaker man with a feebler heart similarly succumbing in a milder temperature would be said to have met with an accident, and, in the end, the liability of the insurer would be stretched to cover any case where high blood pressure united with exertion in causing prostration.

The case of the plaintiff was not as strong in law as the case where recovery was denied in New Amsterdam Casualty Co. v. Johnson, Admx., 91 Ohio St., 155, 110 N. E. 475 L. R. A., 1916B, 1018.

The defendant was entitled to a directed verdict at the conclusion of the testimony.

The judgment is reversed, and judgment is entered for the plaintiff in error.

Judgment reversed.

Middleton and Blosser, JJ., concur.  