Giving to the complaint in this action the most liberal construction possible, I am unable to conclude that it states facts sufficient to show that the death of Clarence L. McMahan was occasioned by purely accidental means, independent of all other causes.
I am unable to agree that the statement contained in the majority opinion (assuming the complaint so alleges) *Page 211
". . . that the embolism, or entry of the blood clot into the blood stream of the insured, occurring by mishap or misadventure, was an unexpected, unusual and unforeseen agency or happening, independent of all other causes of injury and death, and was occasioned by purely accidental means,"
is a sufficient allegation of facts to show that death was caused by purely accidental means and independent of all other causes.
Nor do I think that, when the facts in the cases of Zinn v.Equitable Life Ins. Co., 6 Wn.2d 379, 107 P.2d 921, andEvans v. Metropolitan Life Ins. Co., 26 Wn.2d 594,174 P.2d 961, are considered, it can be said that, under the rules announced therein, the facts pleaded in the instant case are sufficient to show that the death of the insured was caused purely by accidental means, independent of all other causes.
In other words, it is my opinion that the insured submitted to an operation, a voluntary act on his part; that nothing was wrong with the operative procedure; but that an unexpected result followed.
We stated in the Evans case, supra:
"Additional cases holding that, to warrant a recovery under a policy against death or injury by accidental means, it must appear the means was accidental, and that it is not enough that the result was unusual, unexpected, or unforeseen, are: [Citing cases.]" (Italics mine.)
We further stated:
"There is another line of cases which hold that, where the injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death results from accidental means, although there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event [the intentional act] which causes the injury or death. However, we do not feel it necessary to analyze those cases for the reason that their holdings do not conform to the rule adopted by this court and by the majority of the courts of this country." (Italics mine.)
I repeat that I am unable to see how a blood clot passing into the blood stream, as an unexpected result of the operation, *Page 212 can be said to constitute purely accidental means, independent of all other causes.
I am therefore of the opinion the trial court properly sustained a demurrer to the complaint.