Thomas v. Fidelity Cas. Co. , 106 Md. 299 ( 1907 )

This is a suit at law, brought by the appellant against the appellee, to recover on an accident insurance policy issued by the appellee company on the life of the appellant's husband as beneficiary under the policy.

The declaration contains the usual money counts and a special count. The special count avers that the defendant, by its policy of insurance, dated the 18th day of November, 1904, did insure David W. Thomas for the period of one year against death resulting directly and independently of all other causes from bodily injuries sustained through external, violent, and accidental means, agreeing that if death should result within ninety days from the injuries, the defendant would pay the beneficiary in the policy named, who is the plaintiff in this action, if surviving, the sum of ten thousand dollars and for that on or about the 14th day of December, 1904, David W. Thomas was injured by an accident, which caused his death on or about the 31st day of January, 1905.

The defense on the part of the company is that the death of the insured did not result directly or independently of all other causes from bodily injuries sustained through external, violent or accidental means, but on the contrary resulted from diseases in no way caused by external, violent, or accidental means.

The judgment was in favor of the defendant and the plaintiff has appealed.

At the trial of the case, the plaintiff reserved nine exceptions, eight of them being to the admissibility of evidence and the ninth, to the granting of the defendant's second prayer. This prayer was granted, at the conclusion of the plaintiff's case, and is as follows: "The defendant prays the Court to instruct the jury that it appears from the uncontradicted evidence that the death of the deceased did not result directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means and therefore under the pleadings, their verdict must be for the defendant."

The prayer being in the nature of a demurrer, it becomes necessary for us to examine the evidence upon which it was based.

The policy, which is conceded to be a Maryland contract, is dated October 18th, 1904, and provides, that the Fidelity and Casualty Company of New York (herein called the company), in consideration of the premium and of the statements in the schedule of warranties hereinafter contained, which statements the assured makes on the acceptance of this policy and warrants to be true, does hereby insure the person named and described in said schedule (and herein called the assured) for the period of one year from noon, standard time, of the day this contract is dated (1) against disability or death resulting directly and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means (suicide, sane or insane, not included) and (2) against disability from illness, as hereinafter defined.

The undisputed facts are, that the insured, David W. Thomas, on the 17th of December, 1904, while walking upon W. Saratoga street, in the city of Baltimore, slipped and fell upon the pavement and injured his ankle. There were snow and ice on the pavement at the place of the accident, and his fall is alleged to be due to this condition of the street. He returned shortly after the fall to the Young Men's Republican Club, where he had left a number of friends to go to the Hotel Rennert, and complained of suffering considerable pain in his right leg. Doctor Chambers subsequently diagnosed the injury as a fracture of the fibula, the small outer bone of the ankle. He died on January 31st, 1905. The insured was a man of sixty-four years of age, and at the time of his death the fracture of the ankle had completely healed. Doctor Chambers, who treated him continuously from the date of the accident, December 17th, 1904, until his death, on January 31st, 1905, in the proofs of loss submitted to the appellee, gave as the cause of death, "The primary cause due to the injury and consequent shock, due to the fall. Contributory — encephalomeningitis. Immediate cause, lung congestion." He testified thatencephalo meningitis was a disease, it is an old form or some form of change in the meninges that covers the brain, changes going on in the brain surface. It is an affection of the brain covering, it means a degeneration. In answer to the following questions, he said:

Q. Doctor, you don't mean to say all men of 64 have encephalomeningitis?

A. I don't mean all men under or over 64 that die, die fromencephalo meningitis. That is one of the things you can die from and in my judgment, that is one of things he did die from.

Q. Isn't that the principal one?

A. That was the most aggravating factor. The final congestion of his lung was the immediate cause.

Q. Did you think the encephalo meningitis was the primary cause?

A. I think that was a contributing cause.

Q. When you filled out the certificate to the Health Department you gave encephalo meningitis as the cause of death?

A. Yes.

Q. That is a disease, is it not?

A. Yes.

The proof further shows that at the time of the accident the insured was suffering from a disease called arterio-sclerosis, which is a diseased condition of the arteries.

Doctor Chambers, testified, he had more or less marked arteriosclerosis. He also testified:

Q. Doctor, an injury to the ankle of the kind that Colonel Thomas had couldn't, of course, have produced arterio sclerosis in a man who didn't have it, could it?

A. Oh, no. It would only be a dangerous factor in a man suffering under those conditions.

Q. Then, Doctor, wouldn't you say, arterio sclerosis was one of the contributing causes that brought about his death?

A. I think if his arteries had been perfectly good, it would have been a trifling injury, but, as it was, it was a very strongly contributing factor to his death.

Q. Then are you still of the opinion, as expressed by you in the proofs of death, that the accident, was the primary cause of Col. Thomas' death?

A. What I meant to state by that is this: The probabilities are, all the probabilities are, that if he had not received this accident, he would not have succumbed to those conditions to which he did in so short a time; that it preciptated those changes and conditions, which frequently occur in a man havingarterio sclerosis; all those conditions can be precipitated by an accident.

Now, upon the evidence disclosed by the record in this case, it cannot be held that the death of the insured was caused by the injury, independently of all other causes. On the contrary, it appears from this uncontradicted evidence of Doctor Chambers, the physician who attended him from the date of the accident until his death, that the fracture of the ankle had entirely healed, and that it could not have caused the arteriosclerosis which existed at the date of the accident; thatencephalo meningitis was one of the things "he died from" and the accident would have been a triflng injury, if his arteries had been in a healthy condition.

The language of the policy is clear and plain, and death must result "directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means."

In Dulany v. Fidelity and Casualty Co., ante p. 17, we said, under the repeated decisions of this Court, the policy must like other contracts, be construed according to the sense and meaning of the language in which the parties have seen fit to express themselves and they must abide by that language even though its selection turn out to have been unwise or unfortunate. A party seeking to secure insurance against a certain contingency must pay due regard to the contents of the policy offered him, and select one which plainly provides for the risk which he seeks to cover.

While the expression, "independently of all other causes," used in the policy, in the case at bar, has not been construed in any of the decisions of this Court, the weight of authority in other jurisdictions is decidedly against the construction urged by the appellant here.

In National Masonic Accident Association v. Shryock, 73 Fed. R. 774, the Court said: "If the appellee suffered such an accident (a fall on the street) and his death was caused by that alone, the association agreed by the certificate to the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effect of the accident, the death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident and the contract exempted the association from liability therefor."

In the case of Maryland Casualty Co. v. Glass, 67 S.W. Rep. 1062, where the policy contained the expression "independent of all other causes," the Court said: "The burden of establishing the fact that the death of M.E. Glass resulted, independent of all other causes, from chloroform administered to him, is on the plaintiff. In other words, she must prove that the anaesthetic was proximately the sole cause of his death. If his death was caused by it alone, the appellant, by the policy, is liable to the appellee in the principal sum therein specified. But if he was afflicted with the disease which caused or directly contributed to his death, the company would not be liable, though chloroform might have been a cause concurring with his affliction in producing death. If he was suffering from appendicitis, as is shown by the indisputable evidence, and if the anaestheic would not have caused his death had it not been for such affiction, but he died because the chloroform aggravated the effect of the disease, or appendicitis aggravated the effect of the drug, the company would not be liable under its contract. For in either event appendicitis and chloroform would be concurring and inseparable agents proximately contributing to his death, and it could not have been the result of an injury from anesthetic, independent of all other causes." And to the like effect are the cases of Barry v. Accident Association, 131 U.S. 100;Commercial Travellers Association v. Fulton, 79 Fed. Rep. 423 and other cases there cited.

We have examined with some care the very able and carefully prepared brief submitted on the part of the appellant, and the cases relied upon and cited therein. They are clearly distinguishable from the case now before us because they rest upon dissimilar facts.

In the case at bar, the injury which the insured sustained from the fall completely healed before his death, and according to the uncontradicted evidence of Doctor Chambers would have been a trifling injury, and could not have caused either arteriosclerosis or encephalo meningitis, which were the causes of his death.

On the state of facts disclosed by the record, we are of the opinion, that the Court below was entirely right in withdrawing this case from the jury, and in granting the defendant's second prayer, to the effect that the death of the insured did not result directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means.

We have examined the eight bills of exceptions relating to the rulings on the evidence and find no error therein.

The first, second, and fourth bills of exceptions relate to questions asked and answered by Doctor Chambers, on cross-examination. The rule that a hypothetical question to an expert witness must be based upon facts proved in the case, does not apply to cross-examination. Mr. Jones in his work on Evidence, says: Although we have seen that on direct examination the hypothetical questions must be based on facts, proved or which the evidence tends to prove no such limit is imposed upon the cross-examination. For the purpose of testing the accuracy or credibility of the expert, or the value of his opinions he may be interrogated as to pertinent hypothetical cases concerning which no evidence has been given.

The extent to which the examination may go in respect to such collateral matters rests in the sound discretion of the Court, and the exercise of such discretion will not be reviewed on appeal, unless abused. Wigmore on Evidence, sec. 684.

The second and fourth exceptions are practically the same as the first and the questions asked, were properly admissible on cross-examination.

The third exception relates to the refusal of the Court to allow Doctor Chambers to answer a long hypothetical question on re-direct examination based upon assumed facts, of an autopsy on the body of the insured.

There was no evidence as to the facts disclosed at the autopsy and the question would have been clearly inadmissible upon examination in chief, and was improper on re-direct examination.Safe Deposit Co. v. Berry, 93 Md. 568; Electric Light Co. v. Lusby, 100 Md. 634.

The fifth, sixth, seventh, and eighth bills of exception, relate to the question of the alleged breach of warranty and in the view we have taken of the case, it is not necessary to consider them. The rulings of the Court, in refusing to allow the questions to be asked, embraced in these exceptions, could not have injured the plaintiff.

Finding no error in the rulings of the Court, the judgment for the reasons assigned, will be affirmed.

Judgment affirmed, with costs.