Lee v. New York Life Ins. Co.

I concur. I also agree that if there was an injury which was effected solely through external, violent and accidental means, which injury in turn directly and independently of all other causes produced the death of the insured, such death could not have been caused directly or indirectly from illness or disease of any kind. And, of course, the converse must be so, that is, that if the death was caused directly or indirectly from illness or disease of any kind, it could not have been caused directly by the injury independently of all other causes. And I think this must follow by every dictate of common sense and reasonable construction of language in spite of our decision in the case ofBrowning v. Equitable Life Assur. Soc., 94 Utah 532,72 P.2d 1060, on petition for rehearing, 94 Utah 570, 80 P.2d 348. In the Browning Case a sprain to the finger was caused by a fall. Every reasonable construction of the evidence required the finding that an infection or toxemia, not caused by the accident or injury and not set in motion by the accident, attacked the joint involved in the sprain and prolonged the incapacity long beyond the outside normal period of incapacity which would have been alone due to the sprain. Instead of the sprain being the cause, independently of all other causes, of the prolonged incapacity, the reverse was true; that is, that the infection or toxemia was the sole cause independently of all other causes of the prolongation of incapacity. Yet we held that the insurer was liable. I think such holding is without precedent in the United States. It seems difficult to conceive of any case where there may be any interaction of the results of an injury and the results of some other independent cause regardless of how paramount, efficient or concurring the other independent cause may be in producing the death or incapacity which, under that holding, would not be covered by the policy. The only case which would apparently not be covered by the policy would be where the course of the chain leading from the injury and the course of the chain leading from the other cause, be it a disease, toxemia, infection or what not, were shown to be entirely separated without any interaction one with the other. Certainly, under the Browning Case, which I think is beyond the outside circle of liability arising from any reasonable construction of the policy, this case must be decided against the insurer.

I think, however, independently of the Browning Case, the judgment in this case should be affirmed. There is some evidence, thin as it may be, that the blow of the trailer tongue set in motion infection contained in the diseased gall bladder which in turn affected the appendix. If the diseased gall bladder was before the accident in a quiescent state where it was not affecting the system or affecting insignificantly, and the accident had started into the system the walled up infection, then I think the insurer would be liable, because then it could be said according to one line of cases that the injury directly and independently of all other causes caused the death even though the infection thus set up by the injury was the paramount, proximate reason for the death or incapacity. This is because the causes are linked together in series, — the accident causing the injury, the injury causing a diffusion of the infection, and the infection causing the appendicitis and the appendicitis causing death. This is not the Browning Case where the course of the injury was one thing which simply set the stage, whilst the toxemia, an independent, crusading agency, already there, not produced or set in motion by the injury, but simply using the injured part as a favorable spot for its operation, therefore operating not in series but in parallel, was the efficient, paramount and independent cause of the prolonged inability. I am aware that there is very respectable authority to the effect that even where the accident sets in motion a dormant pre-existing condition and that condition, rendered active, is itself the efficient concurring or paramount cause of the death or disability, that such must be considered a cause independently of the accident. But I think the insurer takes the insured "as is" and if the accident by operating on that particular person actually set in motion causes which would not have been set in motion in a normal person but which produced the final result, it is a reasonable construction of the policy to hold that the accident was the direct and only cause of the final result.

This judgment, therefore, may be upheld independently of the holding in the Browning Case. For the reason that I am bound by the Browning Case as the law in this State, and because independently of it I think the judgment should be affirmed, I concur.