Kahn v. Royal Indemnity Co.

BEASLY, J.,

pro

tem.

Plaintiff brought this action as beneficiary under a policy of accident insurance issued by the defendant company to one Frank G. Kahn, her husband, to recover seven thousand five hundred dollars, the principal sum named therein.

The insured died suddenly after having partaken of a hearty meal. A

post-mortem

examination was held, and the coroner’s jury found that death was caused by acute dilation of the heart, following chronic myocarditis, an affliction of the muscles of the heart, and a disease of the liver. It was the claim of the defendant at thé trial that death was caused by heart failure, due to heavy and excessive eating. Plaintiff, on the other hand, contended that death was the result of ptomaine poisoning. The finding upon the cause of death was in favor of the plaintiff’s theory; and it is conceded by the attorney for defendant and appellant that this finding is conclusive against him. The case was tried by a jury, and a verdict was rendered in favor of plaintiff, and from the judgment thereon defendant appeals.

As grounds for reversal, appellant claims that the trial court erred in overruling the demurrer to plaintiff’s amended complaint, and further erred in refusing to instruct the jury to find a verdict for the defendant.

The questions involved upon the demurrer are: 1. Is ptomaine -poisoning a bodily injury? 2. Is death which is

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caused thereby death by external and accidental means, as those terms are used in the policy ?

It is defendant’s claim that ptomaine poisoning is not a bodily injury in any sense that will permit a recovery under the policy, but rather that it is a disease, the same as any other caused by bacteria or germ infection, such as typhoid or scarlet fever; and that to include such cases within an accident policy is virtually to make a life insurance policy out of one merely intended to have a limited application. Interesting as is this subject, we do not consider a discussion of it necessary, for the reason that we are of the opinion that the second point relied upon for reversal, namely, that the court erred in refusing to instruct the jury to find a verdict for the defendant, presents a legal barrier against any recovery upon the policy, irrespective of the cause of death.