Opinion
No. 35248.
January 25, 1943.
1. INSURANCE.
To recover under life policy provision for double indemnity for accidental death, proof was required that death resulted from accidental injury and not from active disease of insured from which death might have occurred at any time.
2. INSURANCE.
Evidence showing that insured was suffering from an active disease which alone might cause his death, and had sustained a broken hip, but not indicating which factor caused his death, was insufficient to justify the recovery of double indemnity on life policy for accidental death.
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
Heidelberg Roberts, of Hattiesburg, Watkins Eager, of Jackson, and Alexander Green, of New York, N.Y., for appellant.
The rule in this state, as we understand it, is that, assuming an injury by accidental means, same constitutes the sole cause of assured's death even though the injury sets in motion some latent disease which contributes to the death. On the other hand, if it is shown that the assured was suffering from an active disease of such character and virulence as to endanger life apart from the accident, but might not have done so had the accident not happened, then the disease is, as a matter of law, a proximate contributing cause, and recovery should be denied.
U.S.F. G. Co. v. Hood, 124 Miss. 548, 87 So. 115; Real Estate Trust Co. of Philadelphia v. Metropolitan Life Ins. Co. (Pa.), 17 A.2d 416; Kellner v. Travelers Insurance Co. (Cal.), 181 P. 61.
To recover under the terms of the policy, the burden rests upon the plaintiff to show that the sole proximate cause of the death was an accident. If bodily disease, independent of an accidental injury combined therewith and contributes to produce it no liability exists.
O'Meara v. Columbian National Life Ins. Co. (Conn.), 178 A. 357; Lambert v. Metropolitan Life Ins. Co. (W. Va.), 17 S.E.2d 628.
As between accident and natural causes, there is no legal presumption the death resulted from accident; on the contrary, if there is a presumption, it is that death resulted from natural causes.
Tuttle v. Pacific Mutual Life Ins. Co. (Mont.), 190 P. 993; 5 Couch on Insurance, Sec. 1140.
Compare Mutual Life Ins. Co. of N.Y. v. Loeb (C.C.A. 5), 107 F.2d 7.
Appellee failed to sustain the burden of proving that assured's death resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, and failed to meet the burden of proving that assured's admitted pathological condition did not cause or contribute to the death.
There is no evidence in this record from which a jury could say that assured's death was caused solely by external, violent and accidental means. The duty of the court to direct a verdict for the insurer in this type of case is clear.
Travelers' Ins. Co. v. Selden (C.C.A. 4), 78 F. 285.
Hannah, Simrall Foote, of Hattiesburg, for appellee.
Was the assured's death, within the meaning of the policy provision, a result of bodily injuries and not the result of disease or illness of any kind?
Dr. Bethea testified emphatically that it was his opinion as a medical expert that the assured died as a result of the fractured hip. The doctor was closely cross-examined by the appellant as to the probable effect of the assured's heart ailment and general physical condition and as to the extent, if any, that these things contributed to his death. He testified that he could not with any degree of assurance say that the assured's death was contributed to by these things. He testified that the assured might have died from the fractured hip in any event, even though he had otherwise been in perfect health. In other words, under Dr. Bethea's testimony the question of whether or not the assured's death was contributed to by the heart ailment and his general physical condition is a matter of pure speculation. And this must necessarily have been so. It is not given to human beings to understand the mystery of life.
If the accident is the proximate cause of the death and sets in motion or starts a latent or dormant disease, and such disease merely contributes to the death after being so precipitated by the accident, it is not a proximate cause of the death or a contributing cause within the meaning of the terms of the policy.
U.S.F. G. Co. v. Hood, 124 Miss. 548, 87 So. 115.
It frequently happens that disease and accident are both present in cases arising under accident insurance policies, and the question arises as to whether death or injury resulting therefrom is covered by the policy. This question has been the subject of a contrariety of conclusions on the effect of the specific facts involved in the decisions, but in principle the courts are, in substance, agreed. As a fundamental proposition, the courts adopt the principle that, in the absence of any provision of the policy specifically controlling the matter, whether death or injury is within the scope of an accident insurance policy, where both accident and disease are present, depends upon whether the death or injury is attributable to the accident or disease, and upon the factor of proximate cause. The general rule is that the mere fact that the insured is afflicted with some disease or infirmity at the time of the injury will not preclude recovery upon an accident insurance policy if an accident is the direct or proximate cause of death or disability, even though the policy excepts death or injury caused by disease or infirmity. If the disease or infirmity in no way produces the death or disability, or is merely a condition or a remote cause thereof, and if the accidental injury is of such a nature as to cause death or disability solely and independently of the disease or infirmity, liability exists.
29 Am. Jur. 748, Sec. 996.
The appellant is asking the court to reverse this case on a pure matter of speculation. It is asking the court to speculate in the realm of possibilities as to what might have happened had the assured's heart ailment not have been present. Realizing that only the Divine Power knows the answer of life and death, Dr. Bethea very properly conceded in his testimony that he could not know with absolute certainty whether or not the assured would have lived or died had he been free of the infirmities mentioned. He testified most emphatically and repeatedly that it was his opinion as a medical expert that the active and controlling cause of the death was the fractured hip and he so certified in his death certificate.
We respectfully submit that this case should be affirmed.
Argued orally by M.M. Roberts and Tom Watkins, for appellant, and by Jas. R. Sumrall, for appellee.
The appellee is the beneficiary in two life insurance policies issued by the appellant to Charles D. Askew, each in the sum of $1,000 and both of which contained this clause:
"Upon due proof that the death of the Insured resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, subject to the terms and conditions hereinafter stated, the Society agrees to increase the amount payable as stated on the face hereof, to Two Thousand Dollars.
"This increased amount of insurance in case of accidental death shall be payable upon receipt of due proof that the death of the Insured occurred while this policy was in full force and effect, and resulted solely from bodily injuries, caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, provided that death shall ensue within 90 days from the date of such injuries and shall not be the result of or be caused directly or indirectly by self-destruction, sane or insane, disease or illness of any kind, physical or mental infirmity."
On May 26, 1941, the insured fell, breaking his hip, and died on July 5, 1941. The appellant paid the $2,000 absolutely due under the policies on the death of the insured, but denied liability for the additional $2,000 agreed to be paid therein on the happening of the events set forth in the clause thereof hereinabove set out, for the collection of which this action was brought. When the appellee rested her case the appellant did likewise, introducing no evidence. A request by the appellant for a directed verdict was denied, but a similar request by the appellee was granted and there was a verdict and judgment accordingly. In support of its contention that the appellee's request for a directed verdict should have been denied and that its request therefor should have been granted, the appellant says that the appellee did not meet her burden of proving (a) that the insured's fall was caused by accidental means, and (b) that his death was not the result of nor caused by disease or illness. The first of these contentions will be pretermitted and the evidence bearing thereon will not be set out.
The evidence discloses as to the second that in 1936 a ruptured brain blood vessel resulted in the insured's having a stroke of apoplexy, and being paralyzed on his right side, from which he became permanently disabled and since which to his death the appellant made him payments under total disability clauses in the policies. After this stroke the insured's physical condition grew worse and he suffered and was suffering at the time of his fall with hardening of the arteries, high blood pressure and a valvular heart disease from which his death might be expected at any moment. What the immediate cause of his death was does not appear.
In order for the appellee to here recover, the policy requires her to prove that the death of the insured resulted from his broken hip and not from the active disease with which he was suffering and from which alone his death might have occurred at any time. This she failed to do.
Had the evidence disclosed that the insured was suffering with a latent disease which was put actively in motion by the breaking of his hip, a different question would have been presented. United States F. G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605. The appellant's request for a directed verdict should have been granted.
Reversed and judgment here for the appellant.