September 21, 1934
MASSACHUSETTS PROTECTIVE ASS'N, INC.,
This case is here on reargument. The jury rendered a verdict in the District Court for the plaintiff-appellee, who was beneficiary in a life insurance policy issued by the appellant on the life of her husband, Malcolm F. Lewis, on May 1, 1922. On appeal we affirmed the judgment. The policy was kept in force by the payment of annual premiums of $45 until his death on August 29, 1930.
On June 15, 1930, while bathing at White Fish Lake in the state of Michigan, Mr. Lewis, in diving, struck his head on the bottom of the lake and broke off part of one of his upper teeth.He began immediately to have dull headaches and a general disability, which increased in intensity until his death. He ran a temperature, sometimes as high as 104. On August 23, 1930, he was taken to a hospital, but he gradually became worse until he died six days later.
The policy insured against "loss resulting from (1) bodily injuries effected directly and independently of all other causes by accidental means * * * and due solely to external, violent and involuntary causes," but it did not insure against "death due to disease, whether accidental or otherwise." The policy also provided that loss resulting "from injuries not immediately disabling, shall be classified as sickness."
The appellant says that the District Court should have directed a verdict for it because:
(1) The loss was not effected directly and independently of all other causes by accidental means, for the reason that the insured had an abscessed tooth which had at its roots streptococcic germs which the injury disseminated through the body and brain, finally producing death.
But, under the facts in this case, we think the contention is untenable, for the reasons set forth in our former opinion, which need not be repeated here.
(2) The injury was not "immediately disabling," and did not result in continuous total disability from the date of the accident.
The policy provided that the insurance company would pay the principal sum of $5,000 for which the deceased was insured if his injury which caused death resulted "in continuous total disability from the date of the accident."
Was the injury "immediately disabling," and did it "result in continuous total disability from the date of the accident" within the meaning of the policy? The plaintiff says that it did. Counsel at the argument intimated, if he did not absolutely state, that, in addition to the evidence in the record tending to show such total disability, there was other testimony available which would show, or tend to show, total disability of the deceased, from the date of the accident, and that the duties of his office as train master of the Pennsylvania Railroad, which he ordinarily performed, were in fact performed by others.
Whether or not the record contains all the actual, available facts, we do not know, but, when the case was here before, we realized that at best it was on the borderline, and with considerable misgiving we affirmed the judgment of the District Court. On petition we allowed a reargument, and counsel for defendant has convinced us that the record, as it now stands, does not show continuous total disability of the deceased from the date of the accident.
In view of all the facts, we feel constrained to set aside our judgment, reverse the judgment of the District Court, and award a new trial.
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