United States Casualty Co. v. Thrush , 21 Ohio App. 129 ( 1926 )

Pauline C. Thrush brought suit upon an accident insurance policy issued by the United States Casualty Company. George W. Thrush, her husband, was the assured, and the plaintiff was beneficiary therein. The policy was issued October 10, 1921, and renewed annually thereafter. By the terms of the policy, the company assumed liability for injury or death of the assured resulting "directly and independently of any and all other causes, from bodily injury effected solely by external violence and accidental means." The policy also provided that it does not cover "any accidental bodily injury caused or contributed to directly or indirectly by sickness or disease."

The plaintiff below recovered a verdict and judgment for the amount of the policy, and the insurance company prosecutes error. It is claimed that the trial court erred in overruling a motion of the defendant below to require an election upon the alternative averment "that as a result of said injury, or from blood poison resulting directly therefrom."

This was not error, especially in view of the subsequent withdrawal of the averment as to blood poison. A claim of error is based upon the admission of the testimony of Miss Bierly concerning the statement of Thrush, the assured, as to his injury, immediately after the accident. This evidence was admitted and then withdrawn upon the motion of plaintiff. The trial court, however, in the course of the trial, remarked that the evidence was competent.

We are of opinion that there was no prejudicial error, for the reason that the testimony was competent. The declaration testified to by Mamie Bierly was made at or so near the time of the accident as to be within the range of the res gestae. In any event there was no prejudicial error because there was other evidence of a circumstantial nature tending to prove the accident. Rheinheimer v. Ætna Life Ins. Co., 77 Ohio St. 360,83 N.E. 491, 15 L.R.A., (N.S.), 245.

The most important question is whether the accident and death of Thrush were covered by the policy. Thrush, the assured, prior to the accident was in apparent good health. He was 63 years old, and a very active man. His neighbors, business friends, and acquaintances so testify. A recent photograph is offered which fully sustains this testimony. June 16, 1924, in going up a stairway from his son's office in the Hartman building to his own in the same building, he stubbed his toe. Thrush's shoe was dented. The shoe was offered in evidence. Thrush complained almost immediately of pain, and limped. He went home early on the day of the injury. Inflammation in the injured toe ensued, and the pain increased. A physician was called and subsequently attended him. Gangrene set in, and eight days after the accident the limb was amputated. The gangrene reappeared, and Thrush died July 12, 1924.

About two weeks after the death of Thrush the body was disinterred, and an autopsy was held. Dr. Shook, who had treated Thrush, Dr. Coons, and Dr. Brundage were present and participated. They all testified that the autopsy disclosed the presence of arteriosclerosis. The physicians differed as to the extent of the ailment, but the medical witnesses agree that Thrush at the time of his death, and at the time of the accident, was afflicted with arteriosclerosis. There is a conflict between the testimony of Dr. Shook and Drs. Coons and Brundage, both as to the extent of the sclerosis and as to the question whether Thrush's accident caused his death. The case was submitted to the jury upon the questions of fact, and the verdict implies that the jury must have accepted the testimony and evidence favorable to the plaintiff's claim.

Dr. Shook testified that in his opinion the accident caused the gangrene, and therefore was the real cause of Thrush's death. This testimony is supported by other testimony, tending to show that Thrush at the time of the accident was apparently healthy. Dr. Shook had the advantage of an intimate knowledge of Thrush's physical condition during life, particularly after the accident, by reason of his personal and professional treatment.

While it is agreed by all the medical witnesses that arteriosclerosis existed in Thrush at the time of his death, and at the time of the accident, yet it is not an undisputed fact that sclerosis to an extent unusual in a man of Thrush's age existed at the time of the accident. All the medical witnesses agree that a certain amount of sclerosis is usually found in persons of Thrush's age. Dr. Coons states that Thrush, with the sclerosis as found at the post mortem, might still have lived for a period of 10 years. There would therefore be reasonable foundation for a finding by the jury that the accident was the real cause of Thrush's death.

The policy sued on is a standard policy. Many cases have been decided in the federal and state courts involving questions similar to those under consideration here. The cases are in direct conflict; some courts, in similar cases, holding that the disease is a contributing cause, and others holding that the accident is the exclusive cause. It would be a waste of time and energy to attempt to classify or analyze these cases. It is, in our judgment, more profitable to decide the case upon principle, and to ascertain and establish a sound and reasonable rule of construction, in view of the facts disclosed by the evidence. A brief reference to the Ohio cases may throw some light upon the fundamental principles applying in the construction of insurance policies.

The case of Mumaw v. Western Southern Life Ins. Co., 97 Ohio St. 1, 119 N.E. 132, holds: "Policies of insurance which are prepared by the insurance company and which are reasonably open to different interpretations will be considered most favorably to the insured. Courts will have in mind the relation of the parties to each other. They will give the language of the contract the meaning on which the minds of the parties may be said to have met and which will effectuate their object in entering into it."

The case of Rheinheimer v. Ætna Life Ins. Co., 77 Ohio St. 360, 83 N.E. 491, 15 L.R.A., (N.S.), 245, adopts and applies the doctrine of causa causans. It was there held that blood poisoning could not be considered as a disease where it grew out of and originated from the accident itself. Notwithstanding the development of blood poisoning, in the Rheinheimer case the original cause was still to be considered as the immediate cause of death. While the Rheinheimer case may be distinguished in the fact that neither blood poisoning nor any other disease existed at the time of the accident, yet the broad principle of interpretation, as expressed by the doctrine of causa causans, was applied.

The court must consider the circumstances surrounding the issuing of the policy in question as a key to the reasonable construction of the terms and conditions. The policy in this case was originally issued to Thrush when he was 60 years of age, and continued in force up to the time of the accident, when he was 63 years of age. We think it is fair to assume, from the testimony in the case as well as from judicial knowledge, that a certain amount of sclerosis is usually found in a person of 60 years of age. To hold that the insurance company, by the issue of its policy, intended to adopt the view that the policy would not be valid where natural diseases, especially of old age, make serious results more probable from accidents, would be an unfair and unreasonable construction. We have a right to assume, in fact we do not doubt, that the insurance company acted in good faith in issuing Thrush's policy. The company intended a reasonable scope of insurance, and this can be accomplished by holding the company liable for accidents, which, operating upon the physical system according to the natural and usual conditions of age, produce serious illness or death. The sclerosis was not the cause of death. The accident caused the gangrene, and the gangrene caused death; therefore the accident was the causa causans. Giving the policy a reasonable interpretation in favor of the assured, the jury had a right to find that the accident was the sole cause of the death.

Finding no prejudicial error, the judgment below will be affirmed.

Judgment affirmed.

FERNEDING and KUNKLE, JJ., concur.

ON REHEARING.