Browning v. Equitable Life Assur. Soc. , 94 Utah 532 ( 1937 )

There are three questions presented and to be determined on this appeal: First. Was the continuity of total disability broken by the period from May 16th to June 12th, inclusive? Second. Were the appellant's defenses of payment, accord and satisfaction, and settlement and discharge proved and established? Third. Was plaintiff's disability during the entire time for which the court gave him judgment caused by injuries due to the accident?

I concur fully with Mr. Justice WOLFE in his analysis and solution of and answers to the first and second questions. As to those matters, I can add nothing to his masterful presentation of the questions and am content to incorporate, by reference, his views on those questions into this opinion.

But, as to the points involved in the third question, I am unable to agree with the views of Mr. Justice WOLFE, and shall therefore consider that question. The policy of insurance provides:

"The Equitable Life Assurance Society Of The United States Hereby insures the person named as applicant * * * against lossresulting directly and independently of all other causes, from bodily injuries effected during the term of this policy solely through external, violent and accidental means, and against disability from disease contracted during the term of this policy. * * *"

The meaning and application of the italicized expression, and what the evidence shows thereunder, are the two matters wherein I differ from my associate. Two questions shall therefore receive consideration: (1) The meaning and construction of the expression "resulting directly and independently of all other causes," and the extent to which it may be urged as a defense. (2) Does the evidence sustain a finding that plaintiff's disability results "directly and independently of all other causes" from the injury to his index finger when he fell on April 20, 1934, within the meaning of the policy? We discuss them in order.

Insurance policies, while in the nature of written contracts, are not prepared after negotiations between the parties, to embrace the terms at which the parties have arrived in their negotiations. They are prepared beforehand by the insurer, and the company solicitors then sell the insurance idea to the applicant. Normally, the details and provisions of 9 the policy are not discussed, except that the particular form of policy is best suited to give the applicant the protection he seeks. If he reads the policy he is generally not in a position to understand its details, terms, and meaning except that, in the event against which he seeks insurance, the company will pay the stipulated sums. He seldom sees the policy until it has been issued and is delivered to him. He signs an application blank in which the policy sought is described either by form number or by a general designation, pays his premium, and in due course thereafter receives, either from the agent or through the mails, his policy. Many of its terms and all of its defenses and super-refinements he has never heard of and would not understand them if he read them. Such fact is evident from the fact that cases like this arise where lawyers and courts disagree as to what such provisions mean. In fact, there are about as many different constructions by the courts of terms such as those involved here as there are insurance companies issuing such policies. For this reason the rule of strictissimi juris has been applied almost universally to insurance contracts, and this jurisdiction, like many others, has declared in favor of a liberal construction in favor of the insured to accomplish the purpose for which the insurance was taken out and for which the premium was paid. Colovos v. HomeLife Ins. Co. of New York, 83 Utah 401, 28 P.2d 607; Gibson v. Equitable Life Assur. Society of United States, 84 Utah 452,453, 36 P.2d 105.

The courts, in interpreting the clause in insurance policies like that here involved, to wit: An injury effected throughviolent, external, and accidental means, entirely independent ofall other causes, have made three distinctions or classes of cases: (1) When an accident causes a diseased condition which, together with the accident, results in the 10-12 injury or death complained of, the accident alone is to be considered as the cause of the injury or death. French v.Fidelity Casualty Co., 135 Wis. 259, 115 N.W. 869, 17 L.R.A. (N.S.) 1011; Cary v. Preferred Acc. Ins. Co. of New York, 127 Wis. 67, 106 N.W. 1055, 5 L.R.A. (N.S.) 926, 115 Am. St. Rep. 997, 7 Ann. Cas. 484. (2) When, at the time of the accident, the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered the sole cause. Bohaker v. Travelers' Ins. Co., 215 Mass. 32,102 N.E. 342, 344, 46 L.R.A. (N.S.) 543. (3) When at the time of the accident, there was an existing disease which, co-operating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause, or as the cause independent of all other causes. Smith v. Federal Life Ins.Co. (D.C.) 6 F.2d 283; Cretney v. Woodmen Acc. Co.,196 Wis. 29, 219 N.W. 448, 62 A.L.R. 675; Leland v. Order ofUnited Commercial Travelers of America, 233 Mass. 558,124 N.E. 517, 520.

The trial court was of the opinion that this case falls within the first class, while Mr. Justice WOLFE thinks it falls within the third class. Without repeating in detail, we accept the statement of the evidence on this matter as set out by Mr. Justice WOLFE with the following additions: The medical evidence indicated that Dr. Browning had some infected teeth and diseased tonsils and, therefore, probably had some toxemia in his system; that, due to the sprain and bruise of the finger joint, the toxemia localized in the injured part and delayed and perhaps prevented recovery. But Dr. Spencer and Dr. Baldwin both testified, that, had the injury not been sustained, there would probably have been no inflammation at that particular part of the body, that it was highly improbable that arthritis would otherwise manifest itself in that joint, and that it was the devitalizing of the injured parts that induced the attack of arthritis; that prior to the injury the insured gave no evidence of systemic toxemia, and there is no evidence that it manifested itself at any other point in the body. Upon such a record, the trier of the facts may well conclude that the diseased condition of the finger was caused by the accident, and the case falls in class (1) above set out.

On such a record, can the case fall within class (3) so as to bar a recovery? This class requires that there be an existingdisease, one existing at the time of the accident, which co-operates with the accident to produce the disability.Cretney v. Woodmen Acc. Co., 196 Wis. 29,219 N.W. 448, 62 A.L.R. 675. We have searched the record in vain 13, 14 for any evidence that there was an existing disease within the meaning of the law, at the time of the accident, which produced the disability. Two propositions of law are thus presented which we shall discuss from the authorities. First, that an existing disease, to take a case out of the insured provisions of the policy, does not mean a temporary disorder or derangement of the bodily organs, system, or functions, nor does it mean a tendency or susceptibility to a disease, but means a chronic or definite affliction such as would be embraced in the common understanding and meaning of the term "diseased" or "sick"; and, second, that the term "independently of all other causes" does not mean uninfluenced or unaffected by any other cause, but means uncontrolled by any other cause, that is, that there was no independent intervening cause unproduced or uninfluenced by the injury, which, acting of itself and without stimulation by the injury, tends to produce the result.

A succinct statement of the rule as to disease is made by the Court of Appeals of New York, speaking through Mr. Chief Justice Cardozo (now on the Supreme Court of the United States) inSilverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81,171 N.E. 914, 915:

"In a strict or literal sense, any departure from an ideal or perfect norm of health is a disease or an infirmity. Something more, however, must be shown to exclude the effects of accident from the coverage of a policy. The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men. EasternDist. Piece Dye Works v. Travelers' Ins. Co., 234 N.Y. 441, 453,138 N.E. 401, 26 A.L.R. 1505. `Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.' Bird v. St. Paul Fire Marine Ins. Co.,224 N.Y. 47, 51, 120 N.E. 86, 87, 13 A.L.R. 875; Goldstein v.Standard Accident Ins. Co., 236 N.Y. 178, 183, 140 N.E. 235,236; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303,146 N.E. 432, 38 A.L.R. 1115. A policy of insurance is not accepted with the thought that its coverage is to be restricted to an Appollo or a Hercules."

We must bear in mind a distinction between a condition which, when tested by perfection, may be unsound or abnormal, yet of such nature that common speech would not call it a disease or infirmity but a susceptibility or predisposing tendency because its danger is remote or potential only, and a condition that in its natural and probable development may be, in the common understanding of man, so abnormal or morbid as to be described as a disease or infirmity. Leland v. Order of United CommercialTravelers of America, supra; Collins v. Casualty Co. ofAmerica, 224 Mass. 327, 112 N.E. 634, L.R.A. 1916E, 1203;Mutual Life Ins. Co. v. Dodge (C.C.A.) 11 F.2d 486, 59 A.L.R. 1290; Taylor v. New York Life Ins. Co., 176 Minn. 171,222 N.W. 912, 60 A.L.R. 959; Cheswell v. Fraternal Acc.Ass'n, 199 Mass. 267, 85 N.E. 96. The governing principle has been stated by Mr. Chief Justice Rugg of Massachusetts in the Leland Case, supra, as follows:

"If there is no active disease, but merely a frail general condition, so that powers of resistance are easily overcome, or merely a tendency to disease which is started up and made operative, whereby death results [or disability occurs] then there may be recovery even though the accident would not have caused that effect upon a healthy person in a normal state."

Any other construction would be so doctrinaire, so headed toward futility, that it would reduce a policy and its coverage to contradiction and absurdity.

All of us, at all times, probably have in our systems microbes, germs, and bacteria of many diseases — pneumococcus, streptococcus, staphylococcus, tuberculosis, and influenza bacillus, ad infinitum — but which in the normal course of our lives we may successfully ward off. Because in warding off such possible diseases we may be in a weakened condition of strength and resistance, we may the more readily succumb to an injury accidentally sustained by external violence. The injury, not the presence of the disease germs in the system, would still be the cause of death or disability.

Cases where disease and accident are involved under insurance policies are three-fold: (a) Where a disease, as such, exists at the time of the accident and contributes to the effect of the accident. (b) Where the disease, nonexistent as such, at the time of the accident, develops due to the weakening of the body by the accident, and is thereby causally connected with the accident. (c) Where a disease develops after the accident, but is not causally connected therewith. Classes (b) and (c) mark the difference between the case under consideration and the case emphasized and relied upon by appellant and by Mr. Justice WOLFE, to wit, Wrobel v. General Acc., Fire and Life Assur.Corporation, 288 Mass. 206, 192 N.E. 498, 500. In that case the trial court specifically found there was no causal connection between the accident and the neurofibroma which later developed. The court says, "It was a question of fact whether on all the evidence, neurofibroma had any causal connection with the injury. The finding that it did not have such connection cannot be pronounced to be without support in the evidence. That fact being established, it remained for the trial judge to find" the length of time disability was due to the accident alone.

In the case before us, the trial court found as a fact that the injury to the finger through the whole period claimed by plaintiff was due to the accident; that there was a causal connection between the sprain and trauma of the 15 accident and the arthritis and stiffness which developed in the finger. Such finding may be close on the evidence but it cannot be held unwarrantable as a matter of law. On the reasoning and the decision in the Wrobel Case, therefore, this judgment, like the one there, should be affirmed.

Let us see what the courts have said as to the expression,directly and independently of all other causes, throughaccidental means. "Accidental means" is used in the policy of insurance in its common significance, that of happening unexpectedly, without intention or design. UnitedStates Mut. Acc. Ass'n v. Barry, 131 U.S. 100, 9 So. 16 Ct. 755, 33 L. Ed. 60. Accident is a comprehensive term, much broader than negligence. It would be error to rule as a matter of law that the disability was not effected "directly and independently of all other causes" through the injury received in the fall. The point of difference is as to whether the toxemia probably existing in the body of the insured was not a cause co-operating with the fall in inducing the disability. But this toxemia was simply a condition and not a moving cause of the injury. A sick man may be the subject of an accident which would not have befallen him but for his sickness. One may meet his death by falling into a place of danger in a faint or in a fit of epilepsy. But an event has usually been held to be the result of an accident, not of disease. In Manufacturers' Acc.Indem. Co. v. Dorgan, 58 F. 945, 954, 7 C.C.A. 581, 22 L.R.A. 620, it was said by Mr. Justice Taft:

"If the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning, in such case, would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result, even had there been no water at hand to fall into. The disease would be but the condition; the drowning would be the moving, sole, and proximate cause." See, also, Winspear v. Acc. Ins. Co., 6 Q.B. Div. 42; Ludwig v.Preferred Acc. Ins. Co., 113 Minn. 510, 130 N.W. 5; PreferredAcc. Ins. Co. v. Muir, 126 F. 926, 61 C.C.A. 456.

"The language of this contract to the effect that the "accidental means' must have operated `independently of all other causes,' to produce the death, does not change the general rule of law, that the proximate and not a remote cause is the one to which the law looks," said Mr. Chief Justice Rugg in Bohaker v.Travelers' Ins. Co., supra.

The policy before us does not provide that recovery shall be had only if no other circumstance than the accident contributes to the disability either proximately or remotely, directly or indirectly, wholly or in part. We are not required to search beyond the proximate, efficient, and inducing cause to see if there may be latent causes. When there is evident a single agency acting directly and predominantly to produce an injury as a natural result, which agency acted independently of other like causes, the conditions of the policy have been met and fulfilled, provided such agency comes within the scope of an accidental one.

There are numerous cases where a slight wound became infected and from such infection, and not from the accident itself, as such, disability or death resulted. The better reasoned cases hold that but for the accidental injury there would have been no infection developing, and therefore the accident was the proximate and sole cause of the disability or death. Cary v.Preferred Acc. Ins. Co., supra; French v. Fidelity Casualty Co., supra.

But counsel insist that the phrase in question does not mean the "sole proximate cause"; that there was an independent intervening cause, the arthritis, which aggravated the disability and, therefore, defendant is not liable. We cannot accept this interpretation of the language nor the conclusion made therefrom. Substantially the same language is found in the policy construed in Hall v. American Masonic Acc. Ass'n, 86 Wis. 518,57 N.W. 366, where death resulted from apoplexy. The court sustained the finding of the jury that the accident was the proximate cause of the apoplexy which intervened causing death. The same clause was again construed against appellant in Weidner v. Standard Life Acc. Ins. Co., 130 Wis. 10, 110 N.W. 246.

The intervening cause which follows as a natural, though not necessary consequence of accidental injury cannot, therefore, be considered an independent cause. An intervening cause, set in motion by the accidental injury, is a result of the accident and not an independent cause. The language used can have no broader meaning than the 17, 18 words "sole and proximate cause." Thus, blood poisoning resulting from an abrasion of the skin on the toe has been held within the policy. Western Commercial Travelers' Ass'n v.Smith, 85 F. 401, 56 U.S. Ap. 393, 29 C.C.A. 223, 40 L.R.A. 653. So, too, has pneumonia caused by taking cold while confined to bed as the result of an accident, when this would not have occurred had the person been in normal health. Isitt v.Railway Passenger Assur. Co., 22 Q.B. Div. 504. And inDelaney v. Modern Acc. Club, 121 Iowa 528, 97 N.W. 91, 63 L.R.A. 603, it is held that, where a disease follows as a natural, though not necessary, result of the injury, it is an accident within the policy. And, where a man engaged in a fight received an abrasion on the hand and blood poison set in from germs received from the mouth of the person struck, a recovery was allowed. Carroll v. Fidelity Casualty Co. (C.C.) 137 F. 1012. This contract does not require us to indulge in the niceties of analysis to ascertain whether in the chain of causations there is another cause, more hidden in its origin or more subtle and hidden in its operations, which may more indirectly have a causal connection with the injury. The single operating, proximate cause of the disability was found to be the fall and not the disease.

There being some supporting evidence, the finding of the trial judge will not be disturbed. We must therefore hold that where disability results, even though aggravated or intensified by a disease which follows as a natural, 19, 20 though not necessary, consequence of an accidental physical injury, or where the disease is induced or set in motion as a result of the injury, the disability or death is deemed the proximate result of the injury and not of the disease as an independent cause. It follows that the judgment of the district court should be affirmed.

FOLLAND, C.J., and HANSON and MOFFAT, JJ., concur in the opinion of LARSON, J.