Tucker v. New York Life Ins. Co. , 107 Utah 478 ( 1945 )

I concur. In this case the facts, through the testimony of the experts, show that the disease was an efficient cooperating cause of the death which, of course, precludes the death from having occurred from bodily injury independent of all other causes. The case of Lee v. New York Life Ins. Co., 95 Utah 445,82 P.2d 178, is distinguished because where the effects of a disease were walled up so as to be innocuous and that wall was broken down by the direct effect of the injury, it is as if the injury caused a disease and the disease caused the death.

To my mind this case must be considered as overruling the Browning case. The law in the Browning case is correct and well stated but was not applicable to the facts of that case. In that case an injury did not produce a disease which solely caused or efficiently concurred in producing the prolonged incapacity. What happened was that an injury produced a focal point on which toxemia, already at large in the body, found a fruitful spot for its mischief. Thus, the toxemia was the sole cause or at least a preponderating and efficient cooperating cause of the prolongation of the disability. Certainly where a finger is sprained by a fall and thus furnishes a fruitful place for independent and pre-existing toxemia to work upon, we have a weaker case for the insured under a clause such as exists in the policy involved in the instant case where the fall itself sets in motion forces which act on the diseased condition and cause death. In the Browning case there was no evidence that the fall which caused the sprain on the finger even set in motion or in any way accelerated the toxemia. It simply furnished a fruitful place on which it would banefully work its effects — as said in the dissenting opinion in that case, it set the stage for the actors to walk upon. In this case the accident set in motion forces (increased the blood pressure) which, working on pathological condition, caused death. Certainly if recovery is not allowed in this case because the injury did not cause the death independently of the disease, recovery should not for stronger reasons have been allowed in the Browning case. Therefore, I think the holding in this case must overrule the Browning case.