172 Iowa 429 | Iowa | 1915
The by-laws and constitution stipulated: “That payments authorized under the provisions of this section shall not cover or extend to any total disability or loss resulting from or in consequence of fighting, duelling, riding, or driving races . . . appendicitis, bodily infirmity or deformity, mental infirmity . . . nor any death, disability or loss resulting from or in consequence of. ivy poisoning or by poisoning or exposure to any poisonous growth or substance, nor from the bite or sting of an insect, ptomaine poisoning, nor as the result of, or in consequence of herma, nor to any total disability or loss of which there is no external or visible mark of the accident on the body; nor to any death, disability or loss which results from, or in consequence of.any disease; nor to any death, disability or loss caused wholly or in part by bodily infirmity or disease; nor to any death, disability or loss unless caused by bodily injury which is external and accidental; and is the proximate, sole and only cause of death; disability or loss; nor as a result of or in consequence of medicinal treatment, mechanical treatment, surgical treatment, except operation made necessary by the particidar injury for which the claim is made, and the operation occurring within ninety days from the time of the accident.” '
Due notice was given and proof of loss furnished, but payment refused. The assignment to plaintiff was alleged and he prayed for judgment in the sum of $300.
The demurrer sustained contained two grounds: (1) That plaintiff was seeking to recover for a loss which was the
The ruling on the demurrer was on the theory that, though the injury was accidental, and cause of the hernia, no recovery could be had for that the loss of time was due to an operation rendered necessary in consequence of the hernia. In so ruling, the court admittedly was influenced against its own inclination by the opinion in Kelsey v. Continental Casualty Company, 131 Iowa 207. The exemption from liability there considered was “from unnecessary exposure to danger or,to obvious risk to injury from hernia, orchitis, fits, vertigo, somnambulism”, in which case but one tenth of the indemnity should be paid;'and the court said, apparently without attention being called to the authorities: “In our judgment this language is open, to but one interpretation, and that is that; for loss of time, resulting wholly or in part from hernia accidentally produced, the amount which the company undertákes to pay is but one tenth of the indemnity or benefits which the insured would be entitled to receive for a like loss of timé occasioned by injuries not enumerated as being within the exceptions or restrictions contained in said sixth clause of the policy.”
The opinion discloses that the main contention was with reference to the admissibility of oral evidence tending-to show a waiver of the printed conditions of the policy. At any rate, a re-examination of 'the question leaves no doubt that the ruling is contrary to the accepted canons of construction which obtain in such cases, as well as to the great weight of authority and should be overruled. • (See cases collected in 8 L: B. A. (N. S.) 1014.)
“The hernia must be regarded as the result of the accident that caused the death; the cause of death; the force of the blow received; the consequent injury arising.from the concussion, and the hernia as resulting. Deceased was insured against the accident by the terms of the body of the policy. Had he died of ordinary hernia, not produced by a serious and violent injury, appellant would probably have been released from payment; but when the hernia is the accidental result of- the force of the blow, it cannot be regarded as excepted . . .
“The business of the company is to insure against accident. The object of the insured in making the contract was*435 to secure compensation and support in case of injury or disability arising from accident, and, in ease of accidental death, to furnish a fund for the benefit.of the mother. The contract in the policy for and on which he paid the consideration was to pay the mother $1,500 ‘if death shall result . . . from bodily injuries effected during the term of this insurance through external, violent and accidental means’. 'That the contingency against which he insured did happen, and death ensued, is uneontradicted; that the bodily injuries resulting in death were received ‘through external, violent and accidental means’ was established beyond controversy. Such construction must be given to contracts of this kind as was evidently contemplated by the parties, and, while so construing them as to protect the insurer against fraud, deception and misrepresentation, give the insured the benefit of his contract and consideration for the premium paid.” In Freeman v. Mercantile Mutual Accident Association (Mass.), 17 L. R. A. 753, the exemption provided that the benefits should not extend “to any ease in which death or disability occurs in consequence of disease, or which may have been caused by any surgical operation, or medical or mechanical treatment, unless said operation or treatment shall have been undertaken for the relief of injuries which entitle the member to the benefits of this association, nor to any case except where the injury is the proximate cause of the disability or death”.
The insured died of peritonitis and the evidence tended to show that it was induced by a fall and there was some evidence indicating that he had previously suffered from the disease'. To the contentions of defendant that it was not liable even if the disease were caused by the accident, the court said;
“The principal question iñ the case is, ‘What kind of cause is to be deemed “proximate”, within the meaning of the policy?’ Where 'different forces and conditions concur in producing a result, it is often difficult to determine which is*436 properly to be considered the cause, and in dealing with such cases the maxim, catisa próxima non remota spectatur, is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is necessarily to be deemed the proximate cause. It means that the laiv will not go further back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes beyond seeking the efficient, predominant cause, which, following it no further than those consequences that might have been anticipated as not unlikely to result from it, has produced the effect. An injury which might naturally produce death in a person of a certain temperament or state of health is the cause of his death, if he dies by reason of it, even if he would not have died if his temperament or previous health had been- different; and this is so as well when death comes through the medium of a disease directly induced by the injury as when the injury immediately interrupts the vital processes.”
And the court approved of the following instruction:
“Upon the question as to whether peritonitis, if that caused his death, is to be deemed a ‘disease’, within the meaning of this policy, and the proximate cause of death, within the meaning of this policy, so as to prevent a recovery, depends upon the question whether or not before the time of the fall, and at the time of the fall, he had then the disease, was then suffering with the disease. If he was, then, in the sense of the policy, although aggravated and made fatal by the fall, he cannot recover. But if, owing to existing lesion caused by that disease, but having not the disease at the time, the same kind of malady, that is, peritonitis, was started up, the company is to be answerable, although, if there had been a normal state of things, the fall would not have occasioned such a result.”
In National Benefit Association v. Grauman (Ind.), 7 N. E. 233, the exemption was that the benefits of the certificate should not extend to any case in which death or disability should not occur in consequence of disease. The assured sustained bad injuries which were occasioned by two separate falls which resulted in apoplexy and subsequently in death, and “Though the fall and injury may have resulted in apoplexy in consequence of which death ensued”, it was held that the averments effectually excluded the inference that death resulted in consequence of disease within the terms of the policy.
In Atlanta Accident Association v. Alexander, 104 Ga. 709 (42 L. R. A. 188), the exemption was from “Injuries or death resulting from or caused directly or indirectly, wholly or in part, by disease or bodily infirmity, hernia ... . rupture”, etc., and the court said: “"We think that where hernia is produced by a sudden and accidental strain and the insured shortly afterwards dies therefrom, the association is not exempt under this clause. Such a construction would make the policy very misleading to the insured.”
It would be, as whs said by Willes, in the case of Fitton v. Accidental Death Insurance Co., 17 C. B. (N. S.) 122, “a most illusory policy”. In Thornton v. Travelers’ Insurance Company, 116 Ga. 121 (94 Am. St. 99), the court had before it a similar exemption. The assured was afflicted with what is known as a reducible hernia and wore a truss. A sudden' lurch of the train on which he was riding threw him violently
Judge Sanborn in Western Commercial Travelers’ Association v. Smith, 56 U. S. App. 393 (85 Fed. 401), in considering a similar case, thus stated the principle:
“If the death was caused by bodily injuries effected by external, violent, and accidental means alone, the association was liable to pay the promised, indemnity. If the death was caused by a disease which was not the result of any bodily infirmity or disease in existencé at the time of the accident, but which was itself caused by the external, violent, and accidental*439 means which produced' the bodily injury, the association was equally liable to pay the indemnity. In such a case, the disease is an effect of the accident, the incidental means produced and used by the original moving cause to bring about its fatal effect, a mere link in the chain of causation between the accident and the death, and the death is attributable, not to the disease, but to the causa causans, to the accident alone.”
' In Summers v. Fidelity Mutual Aid Association, 84 Mo. App. 605, on this subject, the court said:
“In accident insurance, where a person is insured against bodily injuries which are effected by external, violent and accidental means, and an accident produces the hernia causing death, the insurer will be liable. For the insurance is against accidents and if hernia result from the accident, it will no more exempt the insurer than if it had not been named as a cause of exemption.”
We have discovered no well-considered case to the contrary. An intermediate court in New York so decided without discussion or citation of authority. Sweeney v. National Relief Association, 101 N. Y. Supp. 797; Bacon v. U. S. Mutual Accident Association, 123 N. Y. 304 (20 Am. St. 748), held that death resulted directly from disease.
In Smith v. Accident Insurance Co., 5 Ex. 302, the exemption covered secondary causes arising within the system of the insured before or at the time or following such accidental injury and hence the case is not in point.
In Keen v. Continental Casualty Company, decided at the present term (April 7, 1916), the exemption was “where accidental injury results in hernia”.’ In Fitton v. Accidental Death Insurance Company, 17 C. B. (N. S.) 122, similar exemptions in a policy were construed and it was held that death through hernia caused solely and directly by external violence followed by a surgical operation performed for the purpose of relieving the patient was not within the exception.
It is unnecessary to direct attention to other decisions.