Opinion
No. 3668.
April 11, 1929. Rehearing Denied April 18, 1929.
Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
Suit by Catherine Yates against the International Travelers' Association. Judgment for defendant, and plaintiff appeals. Reversed and remanded for a new trial.
The appellant was the wife of Lewis Frederick Yates, and was the beneficiary named in an accident policy issued to him by the appellee. She brought the suit upon the policy, alleging that the insured met his death on June 29, 1927, from asphyxiation resulting from the administration to him of nitrous oxid gas as an anesthetic by a regular practicing physician preparatory to the lancing of an abscess around the tonsils. After hearing the evidence the court peremptorily instructed a verdict for the defendant, and the plaintiff has appealed from the judgment.
The policy insured Lewis Frederick Yates against loss of life "resulting from bodily injuries effected directly, independently and exclusively of all other causes through accidental means (excluding suicide, voluntarily or involuntarily, sane or insane)." The policy expressly excepted from insurance, namely: "Any injury, fatal or otherwise, sustained * * * being in any degree under the influence of a narcotic or intoxicating liquor * * * from disease or medical or surgical treatment therefor."
The insured met his death while the policy was in force. On June 29, 1927, the insured went to a physician's office to have him open or lance an abscess around the tonsils. He had been suffering several days with a peritonsular abscess, called "quinsy." The abscess was in the process of formation and was attendant with fever. The insured was otherwise, as the physician states, "a healthy fellow physically, but rather a little too fat." The physician's testimony, briefly stated, is to the effect that preparatory to lancing or making incision in the abscess nitrous oxid gas was administered. The physician thus states:
"We got him ready and put him on the operating table and administered the gas, preparing to make incision in the tonsil. He took the gas badly, he breathed a little badly. We took quite a little at a time and tried to get him under it. We worked slowly with him and increased the oxygen a good deal. Then he straightened out and got in a pretty good shape. Finally we got to the point where we could make the opening. We opened his mouth and took a lance and made the incision through the mucous membrane — slight incision — and reached for the forceps to make the puncture. About that time he grew rigid and had a hard convulsion. I saw he was in distress, and we went to trying to perform artificial respiration. He breathed a few times, but we never could get his respiration re-established. He lived for twenty or thirty minutes. * * * I made a very careful examination of Mr. Yates on the day previous to taking this gas — examined the heart. I did not find anything in that examination that would indicate that he would not be able to take the gas. After the gas was administered to Fred Yates he became very blue, congested about the face. That indicates nitrous oxid poison. * * * That convulsion in this particular case was due to nitrous oxid gas. The nitrous oxid produced asphyxia. That state resulted in complete paralysis of the respiratory centers. The infliction of the slight incision which I made could not have had any effect upon him one way or the other. * * * Death is not the usual or ordinary effect of giving nitrous oxid gas; it is not usual. When it does occur it is an unusual effect. In my opinion Fred Yates' death was due to nitrous oxid poisoning — asphyxia."
The other physician testified, briefly stated:
"It is my judgment that Mr. Yates' death was caused from asphyxiation from gas, the lack of receiving sufficient oxygen. Quinsy is not a fatal disease. * * * In my judgment his physical condition is not what caused the asphyxiation from taking the gas. Death from asphyxiation caused by taking nitrous oxid gas is extraordinary. It is not usual. * * * The giving of an anesthetic is not a surgical treatment. Anesthetics are not given to cure the operation. * * * Fred Yates died from the lack of receiving sufficient oxygen."
It is unnecessary to further set out the evidence in extended detail, as the above facts are substantially without conflict.
The trial court's conclusion on the evidence, and which prompted the peremptory instruction, was: "The evidence discloses that Lewis Frederick Yates' death was an accidental death, caused by the voluntary use of gas administered to him as an anesthetic by a skilled physician. His death was not by accidental means, although the death was an accident."
James A. Cooley, of Kaufman, and Thos. R. Bond, of Terrell, for appellant.
Wynne Wynne, of Kaufman, and Seay, Seay, Malone Lipscomb, of Dallas, for appellee.
Considered in its most favorable light to the appellant, the evidence is such from which a jury might find that the death of the insured was not due nor contributed to by physical infirmity. International Travelers' Ass'n v. Dixon (Tex.Civ.App.) 283 S.W. 681. There is evidence going to show that the insured was in good health, and the abscess he was suffering from was not of a serious nature, and his powers of resistance were not lowered. The evidence suggests, and a jury might so find, that asphyxia was the adequate cause of the death. As proven, asphyxia was resultant from the method of administering nitrous oxid gas to the insured as an anesthetic preparatory to the lancing of an abscess around the tonsils. Nitrous oxid gas is ordinarily a concededly harmless gas when prudently administered and in proper proportions. As stated by the physician, "It is considered about the safest anesthetic we give." Such dire result as asphyxia is unusual, extraordinary and an unlooked-for mishap. In this case the evidence goes to show that such dire result was an unlooked-for mishap. According to the testimony of the physician, he carefully administered the anesthetic and skillfully operated the machine used for the purpose. He further said that "death has never occurred with one of my patients before in giving nitrous oxid." The two physicians testified affirmatively that "Fred Yates died from the lack of receiving sufficient oxygen" during the course of the administering of the anesthetic. There is room in the evidence for the inference that such "lack of receiving sufficient oxygen," or asphyxiation, was immediately due to some defective condition or impairment of the machine used in administering the gas. In describing the machine the physician testified that in case "the outlet valve where the gas goes from the mixing chamber should be clogged in some way, especially the nitrous oxid or the oxygen side either, it would interfere with the mixture. * * * Supposing that the machine doesn't give a large enough per cent of oxygen to mix with the nitrous oxid, it would produce asphyxia."
Death by asphyxiation, due to the impaired or defective condition of the machine, is a death by "accidental means." It was such an unlooked-for mishap as to come within the test applied by the courts. Bryant v. Casualty Co., 107 Tex. 582, 182 S.W. 673, L.R.A. 1916E, 945, Ann.Cas. 1918A, 517; United States Mut. Accident Ass'n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60. The case is analogous to the cases of Townsend v. Commercial Travelers' Mut. Ass'n of America, 231 N.Y. 148, 131 N.E. 871, and Lewis v. Ocean Accident Guarantee Corp., 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129. While the insured intended to have the gas administered to him, he intended to take it in proper proportions and through a properly functioning machine, and not otherwise.
It may not be said as a pure matter of law that the death of the insured was within the exception of the policy as to surgical or medical treatment for disease. There is evidence that physicians do not so regard it. Bonart v. Lee (Tex.Civ.App.) 46 S.W. 906; Beile v. Ass'n, 155 Mo. App. 629, 135 S.W. 497; Frank v. South, 175 Ky. 416, 194 S.W. 375, Ann.Cas. 1918E, 682.
The judgment is reversed, and the cause is remanded for a new trial.