Kundiger v. Prudential Insurance Co. , 219 Minn. 25 ( 1944 )

While fully concurring in the dissent of Mr. Justice Magney, I wish to add a few observations of my own.

This is an action involving contract rights and obligations. Under the terms of the policy, the burden fell upon plaintiff to prove that her husband's death occurred "as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means," and that such death did not result "directly or indirectly from bodily or mental infirmity or disease in any form."

The majority opinion concedes that the testimony of Dr. Stinnette that trauma was "the cause of death lost most, if not all, of its probative value by his admissions upon cross-examination that leukemia was a contributing cause of death, and his further admission that he did not believe the insured 'would have died if he had not had leukemia.' " Therefore, there is left as the only basis for reversal here certain parts of the testimony given by Dr. Heron. His testimony at this trial has been fully related by Mr. Justice Magney, who has demonstrated that there are important — in fact vital — differences in the doctor's testimony at the trial in the Metropolitan case and what he testified to in this one. Dr. Heron's opinion in this case was that "Mr. Kundiger had leukemia and it contributed to his death." The majority opinion concedes that his testimony "was inconsistent and contradictory." But, it is said, his testimony indicates "confusion on his part as to the legal meaning of the phrase 'contributing cause' rather than an unqualified admission that the trauma was not the sole cause of death." In the situation stated, there being, concededly, confusion in his testimony, as well as inconsistency and contradiction, upon what basis could a verdict for plaintiff stand? Let it be assumed that a verdict for plaintiff had been found, could such verdict be said to have sufficient support to warrant affirmance?

It seems to me, too, that the majority opinion falls to distinguish between the rules of law applicable in negligence cases and those relating to cases arising out of contract. Obviously, that distinction is highly important, since in negligence cases defendant's conduct is measured by the standard of reasonable care in the circumstances shown in that particular case. In such action, any tortfeasor whose negligence contributed as a material factor in causing harm to the plaintiff would be liable in damages for the full amount of his loss. For that reason, I think that what the majority has quoted from Turner v. Minneapolis St. Ry. Co. 140 Minn. 248,167 N.W. 1041, is not "much in point." In that case, plaintiff's cause was founded upon negligence, the action being under our death-by-wrongful-act statute. What the court was there considering and deciding related to the facts before it; hence decedent's cause of death, if contributed to by the defendant, established its liability. Not so here. If that case had involved the same question as is here presented, I think there is no doubt that a directed verdict for defendant would have been sustained. If we are to extend to cases of this type the doctrine of contributing causation as a basis for the insurer's liability, we shall thereby be changing its liability from that of an accident policy to one of life insurance.

There is no suggestion made by either party that the language chosen and used by the parties to this policy is involved in uncertainty or contradictions. To me, the present record leaves no doubt that leukemia was a contributing factor in Kundiger's death. He had been treated for that very ailment over a considerable period of time. He knew what his ailment was and had sought and obtained medical aid to remedy his malady, which admittedly was incurable. It had progressed over a long period of time. No one, I submit, can read this record without arriving at the conclusion that his physical condition (leukemia) contributed to his death. Applicable here is the test applied in White v. Standard L. A. Ins. Co. 95 Minn. 77, 80, 103 N.W. 735, 736,5 Ann. Cas. 83, that "if an injury and an existing bodily disease or infirmity concur and co-operate to that end [death of the insured], no liability exists" under the terms of this policy. Interesting, too, is the case of Kundiger v. Waldorf Paper Products Co. 218 Minn. 168, 15 N.W.2d 486, where the industrial commission found that Kundiger died from the effects of leukemia and that the claimed accident did not contribute thereto.

Since a verdict for plaintiff in this case would have to be set aside for lack of sufficient facts to sustain it, the direction of verdict by the trial court was right, and its order should be sustained.