Budzinski v. Metropolitan Life Ins. Co.

This case is again before us on rehearing. I find nothing in the application for rehearing or the briefs filed in support thereof that either requires or justifies any change in the original prevailing opinion reported ante, 495. That opinion was not based on a "misconception of the meaning of the Michigan authorities," nor is it "contrary to the great weight of all outside authority" as appellants contend.

If we adopt appellants' contention we must squarely overruleAbbott v. Travelers Ins. Co., 208 Mich. 654; Kangas v. New YorkLife Ins. Co., 223 Mich. 238; Sanborn v. Income Guaranty Co.,244 Mich. 99; and Hoff v. Mutual Life Ins. Co. of NewYork, 266 Mich. 380. In the last-cited case, this court, in an opinion signed by all of its members, said:

"The appellant's theory is that the tumor and the paralysis had an important part in bringing about the death of the insured, and that the injury was not the sole cause of death as required by the policy. The appellee contends that the abrasion and subsequent infection were the proximate causes and her contention is borne out by the testimony. To enable the beneficiary to recover in this State, it is sufficient that the accidental injury be the proximate cause of death.

" 'Each of these conflicting claims was supported by some competent evidence. It was therefore a question for the jury to determine the cause of death, and if both causes concurred, to say which was the efficient dominant, proximate cause. Even though the contract of insurance should have been interpreted as the defendant claims, the evidence presented a case for the jury.' Kangas v. New York Life Ins. Co., 223 Mich. 238.

"We have examined the authorities submitted by both sides on this issue and do not feel that a new question is presented justifying an exhaustive analysis and compilation of authorities. The profession is well acquainted with previous compilations of authorities by this court. We merely refer toAbbott v. Travelers Ins. Co., 208 Mich. 654; Kangas v. New YorkLife Ins. Co., supra; Ashley v. Agricultural Life Ins. Co. ofAmerica, 241 Mich. 441 (58 A.L.R. 1208); and the footnotes to these cases.

"We agree that the findings of the jury in this case, made after a charge to which no exceptions were taken and probably could not be taken, should not be disturbed, especially since the case falls within the definition given by Justice NELSON SHARPE in Wheeler v. Title Guaranty Casualty Co., 265 Mich. 296.

"The judgment is affirmed, with costs to appellee.

I think this court should follow the precedents clearly outlined in its former decisions or else in express terms overrule them.

POTTER and McALLISTER, JJ., concurred with CHANDLER, J.