Lee v. New York Life Ins. Co. , 95 Utah 445 ( 1938 )

Plaintiff is the widow of Eli F. Lee and beneficiary under a policy of insurance issued by defendant company on the life of Lee. Double indemnity was provided for death by accident independent of other causes. The company promptly paid the face of the policy but refused payment of the additional benefits on the ground that death was not caused solely by accidental means within the meaning of the policy. That is the only question before us.

The court submitted the cause to the jury with appropriate instructions. From a verdict and judgment for plaintiff, defendant appeals. All assigned errors go to the point that the court should have granted a nonsuit or directed a verdict for defendant, or, after verdict, granted a new 1 trial. Our decision is that the court did not err in submitting the cause to the jury, and on a conflict of evidence the verdict cannot be overturned on appeal.

The policy recites that double the amount of the policy will be paid upon receipt of due proof that the death of the insured resulted "directly and independently of all other causes from bodily injury effected solely through external, violent and accidental causes, and that such death occurred within sixty days after sustaining such injury." It further states that the double indemnity benefit will not apply if death resulted from "physical or mental infirmity; or directly or indirectly from illness or disease of any kind." It is evident that if death of the insured resulted "directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause" then it could not have resulted from "physical or mental infirmity; or directly or indirectly from illness or disease of any kind."

Defendant contends that plaintiff's evidence alone discloses that disease was an indirect or contributing cause of death. Plaintiff's view is that on that subject there was evidence by plaintiff's witnesses to support the verdict.

Lee, a teacher in the Brigham City schools, during vacation accompanied his wife in an automobile with supplies to a girls' summer camp in Box Elder Canyon. A trailer, carrying the supplies, was attached to the auto. At the destination Lee unhooked the trailer and led it down the slope to the cabin. The slope and load accelerated the speed of the trailer so that he was pushed against the side of the cabin, the tongue of the trailer hitting him on the right side of the abdomen. He fell to the ground and for a minute or two could not get up. He felt weak and nauseated. In about an hour he was well enough to walk around and shortly thereafter drove his car back home to Brigham City. At home he went to bed and called Dr. Pearce, who prescribed cold packs, gave opiates to relieve the pain, and instructed him to stay in bed. Dr. Pearce testified that Lee complained of pain over the right quadrant of the abdomen, and appeared to be in misery. The abdomen was tense. There was no bruise at that time. He kept the patient in bed most of the time for a week and with his stomach empty. At first there was a temperature of 101 degrees which gradually subsided to normal. After about a week, Lee could walk about and leave the house. About a month after the accident, Dr. Pearce made an examination finding a temperature of 100 degrees. The abdomen was tender in the lower part in the region of the appendix. Blood count showed acute inflammation. There was also pain in the upper region of the abdomen. Dr. Pearce operated for appendicitis. He found and removed an infected appendix. He opened the abdomen further and found an enlarged and diseased gall bladder which he removed. The gall bladder was enlarged to ten times its normal size, containing pus and a stone the size of a hickory nut. The gall bladder had been ruptured at a previous time. The extent of rupture is not entirely clear. Dr. Pearce testified at the time of the trial that the rupture was "clear through" the gall bladder, while in his report to the defendant company he stated that the "external covering of the gall bladder and the muscular coat were ruptured down to the internal mucous layer. There seemed to be no opening in the mucous layer."

Lee's condition was satisfactory for a few days, then turned worse and he was "out of his head." He died August 24th. Dr. Pearce testified as to the facts found on diagnosis and from the operation and gave as his opinion that Lee died from the effect of the accidental blow to the abdomen on July 12th; that the blow ruptured the gall bladder; that the ruptured gall bladder brought about the infected condition of the appendix and made necessary the operation; that in his opinion the ruptured gall bladder was the sole cause of death.

There was, therefore, evidence for the jury, unless we can say as a matter of law that death was not solely caused by accident where the blow disturbed a diseased condition, the gall bladder, which in turn infected the appendix and brought on death.

It is not contended that the disease of the gall bladder was caused by the blow. There is evidence that Lee had been suffering from gall bladder trouble for sometime prior to the accident. Giving plaintiff's evidence full credence, the blow ruptured the gall bladder, causing the infection to 2, 3 spread and infect the appendix and thereby made necessary the operation and caused death. Medical experts produced by defendant testified to the contrary, but for the purpose of determining whether the court should have granted defendant's motions for nonsuit, directed verdict, or new trial, we must consider the evidence most favorably to plaintiff's case. The effect of the blow and the course of infection in the system, and its results, are matters upon which medical experts may advise the jury, and where experts disagree it is for the jury to decide.

The rule, as we believe it to be on the facts which the jury was justified in finding, is that where an accidental injury sets in motion or starts activity of a latent or dormant disease and such disease contributes to the death after having been so precipitated by the accident, the disease is not a 4 direct or indirect cause of death, nor a contributing cause within the meaning of the terms of the policy, but the accident which started the mischief and precipitated the condition resulting in death is the sole cause of death.

It is quite apparent that if Dr. Pearce be believed, and the jury had a right to believe him, the diseased condition of the gall bladder was not actively progressing and it afforded no reason to believe that death might be 5 imminent, but the blow from the accident caused the rupture of the gall bladder that in turn caused infection to spread and affect the appendix, which required an operation, with death resulting. Hence, if this chain of causation be true, the accident was the sole cause of death. Cases supporting this view are numerous. Equitable Life Assurance Society of the UnitedStates v. Gratiot, 45 Wyo. 1, 14 P.2d 438, 82 A.L.R. 1397;Jones v. General Accident, Fire Life Assur. Corp., 118 Fla. 648,159 So. 804; Continental Casualty Co. v. Lloyd,165 Ind. 52, 73 N.E. 824; United States Fidelity Guaranty Co. v.Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605; Druhl v.Equitable Life Assur. Soc., 56 N.D. 517, 218 N.W. 220, 60 A.L.R. 962; Kearney v. Washington Nat. Ins. Co., 184 Wash. 579,52 P.2d 903; Inter-Ocean Casualty Co. v. Wilkins,96 Ind. App. 231, 182 N.E. 252; Moon v. Order of UnitedCommercial Travelers of America, 96 Neb. 65, 146 N.W. 1037, 52 L.R.A., N.S., 1203, Ann. Cas. 1916B, 222; Hill v. GreatNorthern Life Ins. Co., 186 Wash. 167, 57 P.2d 405, 406. See, also, the list of cases cited in Silverstein v. MetropolitanLife Ins. Co., 254 N.Y. 81, 171 N.E. 914; Williams v. GeneralAccident Fire Life Assur. Corp., 144 Kan. 755, 62 P.2d 856.

The result we reach is in harmony with our decision inBrowning v. Equitable Life Assur. Soc., 94 Utah 532,72 P.2d 1060, petition for rehearing denied, 94 Utah 570, 80 P.2d 348, although the two cases are not identical. In the Browning Case many of the cases pertinent to different factual situations with identical or similar policy provisions are fully analyzed and discussed in the decision of the court and in the dissenting opinions. There is no need for us to repeat or further discuss the cases.

Judgment of the District Court of Box Elder County is affirmed with costs to respondent.

HANSON, MOFFAT, and LARSON, JJ., concur.