14 P.2d 438 | Wyo. | 1932
This is an action upon a life insurance policy of $2500 issued to James T. Gratiot during his life time, and providing for double indemnity in case of death through accident. Gratiot died on July 11, 1930. The amount of ordinary insurance, namely, the sum of $2500, was paid, but payment of double indemnity was refused, and this suit was brought to recover it. The case was tried to a jury who returned a verdict for the amount claimed. Judgment was rendered thereon, and the insurance company, the defendant, has appealed. It is its contention that the evidence fails to show that the deceased suffered any accident, and if it could be assumed that he did, the evidence fails to show that such accident was the sole and exclusive cause of the injury of which the deceased died, but that, on the contrary, it is conclusively shown that an aneurysm was at least one of the causes of death. The clauses in the policy referring to double indemnity are as follows:
"Upon due proof that the death of the Insured occurred in consequence of bodily injury effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after such injuries were sustained and as the direct result thereof independent of all other causes, the Society will pay instead of the face amount of this policy, double that amount, making FIVE THOUSAND DOLLARS * * *.
This agreement, to pay an increased amount in the event of death from bodily injury, does not cover self-destruction, sane or insane; death resulting from participation in aeronautics or submarine expeditions;death caused directly or indirectly, wholly or partly, by war, riot, or insurrection, or any act incident thereto, either on land or water; death resulting from any violation of law or from military or *7 naval service of any kind, or from police duty in any military, naval or police organization; or deathresulting directly or indirectly from bodily or mentalinfirmity, ptomaines, or bacterial infections other than infection occurring simultaneously with and in consequence of an accidental cut or wound."
The evidence discloses, briefly, the following facts: The deceased conducted a "dude ranch" at Brooks Lake, Wyoming. On July 2, 1930, in company with four guests, he drove from his ranch to Moran, Wyoming, a distance of about 40 miles from Brooks Lake, returning about 11 o'clock P.M. Apparently, as some of the witnesses testified, because of a car approaching from the rear "crowding" him, his own automobile went off the highway down a steep, nearly perpendicular, embankment, some five to ten feet deep, striking some rocks when the car reached the bottom with a very sudden jolt, all the wheels being off the road, with one of them up in the air. Efforts were made to get the car back upon the highway, but without avail. The deceased thereupon, in company with another, walked a distance of about one-half mile for assistance. With such assistance the car was restored to the highway, and the deceased and his guests then continued their journey to Brooks Lake, a distance of about 17 miles from the point of the accident. Immediately after the accident, according to some of the guests, witnesses in the case, Mr. Gratiot's speech was slurred; he seemed mentally dull, tired, "hazy, groggy and listless." The next day it was observed that his mind was not clear; he seemed to be "groggy," slept in the middle of the day, which he had never done before, and was inconsistent in giving his orders to employees. This condition continued, though deceased did not complain, never saying anything about the accident except that he was sorry that it happened, until the morning of July 8, 1930, when he was found in bed suffering from a paralytic stroke. Dr. Replogle was *8 immediately called from Lander, and Mr. Gratiot was removed to a hospital of that place, where, on July 11, 1930, he died of paralysis caused from a cerebral hemorrhage. An autopsy performed some time later disclosed that the rupture took place at a point of an aneurysm on the basilar artery of the brain. An aneurysm was explained as a bulge in the artery, and the weakest part thereof.
Witnesses other than physicians testified that the deceased was in excellent health prior to the accident; that he was robust, strong and active in the performance of his duties. Much medical testimony was introduced. Dr. O'Connor, of Chicago, testified that he first saw Mr. Gratiot on June 10, 1927, then 43 years of age; that he treated him on June 6, 1930, to discover the cause of glaucoma; that he gave him a complete physical examination, including the heart, lungs, blood pressure, urine and prostate gland; that deceased was then in good physical condition; that his blood pressure was 98 distolic and 158 systolic, which, in his opinion, was within the normal limits for a man of the age of Mr. Gratiot; that at that time he found no evidence of sclerosis or hardening of the arteries; that such hardening is not a disease, but a condition of the tissues developing gradually over a period of years; that there was no symptomatic or clinical sign of any aneurysm, though it might exist; that this subject, however, was not in the direct line of his practice; that a physical shock is liable to cause hemorrhage from any vessel of the body; that an acute dilation of the wall of a vessel results from trauma direct or indirect, and sometimes from syphilis or localized infection.
Dr. Replogle testified that he had known the deceased for about 11 years and had frequently examined him; that he had treated him for glaucoma, a condition of the eye; that before July 2, 1930, he was as nearly normal as could be, except for a slight infection of the prostate; that the blood pressure of the deceased from 1928 on had *9 been 98 distolic and 158 systolic, which he considered normal and which varied little till death; that deceased became paralyzed on July 8, 1930, which was caused, directly, by hemorrhage of the brain; that the hemorrhage was caused by a broken artery as a result of the automobile accident, that accident causing a slow leak of some vessel of the brain, the leak producing a slow growing tumor or tumor mass, which would produce pressure, eventually manifesting itself in paralysis. The witness could not tell whether deceased was suffering from an aneurysm before the automobile accident; he stated that an aneurysm is a dilated portion of an artery, similar to a bubble of an inner tube of an automobile; that it is the weakest spot of an artery, tending to cause its rupture there more easily than at any other place; that, while he could not swear that the rupture was not caused by an aneurysm, independent of an accident, it was his opinion that the accident caused it.
Dr. McClellan testified that he, together with Dr. Kamp and Dr. Hillkowitz, performed an autopsy on the body of the deceased; that it disclosed that the deceased died as a result of a rupture at the place of an aneurysm of the basilar artery and of hemorrhage; that hemorrhage might have continued for a number of days; that trauma, even a turning over in bed, might cause a rupture of an aneurysm; that an aneurysm would likely cause a man to die sooner than otherwise; that the aneurysm in this case contributed to the death; that aneurysms, however, are classified; that, in his opinion, the aneurysm of the deceased was latent. His testimony on this point is as follows:
"A. Aneurysm is classified by aneurysms which give signs at the examination, aneurysms which give symptoms to the patient, and aneurysms which give no symptoms, or aneurysms of latency. I believe the aneurysm discovered in the autopsy is an aneurysm of latency. Q. What do *10 you mean by latency? A. That will not give any symptoms; that will go on, and on and on, without any condition by which you are able to determine the presence of it. Q. Does a latent aneurysm interfere with one's regular routine duties or health? A. No. Q. With latent aneurysm you may state whether or not an individual would live out his normal span of life? A. He probably would without some trauma interfered with his aneurysm latency, cause it to be symptomatic."
He further testified that in the present case the aneurysm, in his opinion, would not have been ruptured except for the automobile accident; that the arteriosclerosis of the deceased had nothing to do with his death.
Dr. Kamp, a witness for the defendant, testified to a greater hardening of the arteries than Dr. McClellan and did not consider the blood pressure of the deceased to be normal, and believed that the accident, and the mental condition of the deceased subsequently, were due to the arteriosclerosis of deceased. Asked as to the cause of the death, he stated that "hemorrhage of the brain from existing aneurysm perhaps would be caused from shock from running off the road," and that the automobile accident may, indirectly, have had something to do with the death; that an aneurysm is progressive and would tend to shorten the life of the deceased, depending on its rupture; that in his opinion the rupture occurred on the morning of the paralysis; that no hemorrhage followed immediately upon the accident, though that is possible; and that the aneurysm in this case existed before, and more than thirty days before, the accident; that, in his opinion, the shock from the accident in this case did not cause the cerebral hemorrhage; that sclerosis of the arteries is common, and people that have it can live to a ripe old age, even with an aneurysm.
Dr. Hillkowitz, witness for the defendant, testified that he found that the deceased had been suffering from certain diseased conditions, namely, arteriosclerosis and *11 an aneurysm; that the cause of the death of the deceased was hemorrhage in an aneurysm of the basilar artery; that there was evidence of calcification in the arteries, which must have lasted from five or six years, and which could have caused the mental condition of deceased immediately after the accident; that the aneurysm must have existed for five or six months or a year before the accident and that it was not caused by the accident; that whether the rupture was caused by the accident is speculative; that it, the rupture, might have been very small at first, gradually increasing over a period of days; that from the evidence which he had heard, it might have been started at the time of the automobile accident. After stating that he could not say whether the automobile accident caused the rupture or not, and that the aneurysm was the "primary" cause of death, he further testified that an aneurysm does not always rupture. And the following appears in the record: "Q. So that in this instance the traumatic shock as a result of this injury was doubtless the efficient cause of rupture? A. Yes." The question seems to refer to the automobile accident, but the point is not quite clear.
The case is one of first impression in this jurisdiction, and we have, therefore, without going into too many details, not only set out the most salient facts appearing in the evidence, but have also deemed it advisable to briefly take note of the leading cases that have been decided under policies similar to that involved in the case at bar. Counsel for the defendant, to sustain their contention, have cited us to the cases which contain the statement that if the deceased, at the time of the accident, was afflicted with a pre-existing disease, and if death would not have resulted if he had not had the disease, but his death was caused because the accident aggravated the effects of the disease or the disease aggravated the effects *12
of the accident, then no recovery can be had on an accident policy similar to that contained in the case at bar. The statement seems originally to have been made by Judge Sanborn in the case of National Masonic Acc. Assn. v. Shyrock, (C.C.A.) 73 Fed. 774. It was adopted as the rule in a number of other cases. Commercial Trav. Mut. Acc. Assn. v. Fulton, (C.C.A.) 79 Fed. 423; Aetna L. Ins. Co. v. Ryan, (C.C.A.) 255 Fed. 483; Kerns v. Aetna L. Ins. Co., (C.C.A.) 291 Fed. 292; Maryland Co. v. Morrow, (C.C.A.) 213 Fed. 599, 52 L.R.A. (N.S.) 1213; White v. L. Acc. Ins. Co.,
In the Shyrock case, for instance, deceased had been very ill before; the existence of an accident, adequate to produce the injury, was doubtful. In the White case it was shown conclusively that diabetes contributed substantially to the death of the decedent. The other cases exhibit a similar situation. The courts were doubtless influenced by the facts before them in stating the law, and a discussion of remote and proximate cause was evidently deemed to be superfluous. Without attempting any further analysis, we do not deem these cases determinative of the case at bar. New Amsterdam Casualty Co. v. Shields, 155 Fed. 54, contains language which, literally construed, tends to support the claim of defendant herein. But recovery was permitted in that case; the question of proximate and remote cause was not discussed, and we do not deem the case controlling herein. Counsel for defendant think that Brown v. Maryland Casualty Co.,
The case of Railway Mail Assn. v. Weir,
There is another line of cases which, as already stated, make a distinction between proximate and remote cause, *15 and hold, substantially, that the remote cause will not prevent recovery, or that, in case of doubt, whether an existing disease or infirmity is a remote or proximate cause, the case is one for the jury. The foundation upon which these cases are built is the rule of proximate cause. That rule was expressed by Watkin Williams, J., in Lawrence v. Acc. Ins. Co., 7 L.R.Q.B.D. 216, in 1881, as follows:
"Lord Bacon's language in his Maxims of the Law, Reg. 1, runs thus: `It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause.' Therefore, I say according to the true principle of law, we must look at only the immediate and proximate cause of death, and it seems to me to be impracticable to go back to cause upon cause, which would lead us back ultimately to the birth of the person, for if he had never been born the accident would not have happened. The true meaning of this proviso is that if the death arose from a fit, then the company are not liable, even though accidental injury contributed to the death in the sense that they were both causes, which operated jointly in causing it. That is the meaning in my opinion of this proviso. But it is essential to that construction that it should be made out that the fit was a cause in the sense of being the proximate and immediate cause of the death, before the company are exonerated, and it is not the less so, because you can shew that another cause intervened and assisted in the causation."
The rule was also stated in Freeman v. Mut. Acc. Assn.,
"Where different forces and conditions concur in producing a result, it is often difficult to determine which is properly to be considered the cause, and in dealing with such cases the maxim, causa proxima nonremota spectatur, is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is *16 necessarily to be deemed the proximate cause. It means that the law 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."
In reading the cases on this subject, perhaps a distinction should be observed between the rule of Arkansas and Alabama on the one hand and the rule in other states (except as noted) on the other. In the two states named, it is held that if the accident accelerates death, it must be held to be the proximate, and the sole cause of death. "In other words, if death would not have occurred when it did but for the injury resulting from the accident, it was the direct, independent, and exclusive cause of death at that time, even though the death was hastened by the diseased condition." Fid. Cas. Co. v. Meyer,
"Even though the insured were diseased and his abnormal condition led to his falling into the water and being drowned — and so in a sense contributed to his death — it is not the law that that contribution of disease to his death would prevent the plaintiff from recovering. The law distinguishes between so-called successive causes as between physical conditions; and the proximate excludes the more remote. If the deceased came to his death by drowning, then, legally, that was the sole cause of his death."
In one sense at least, the conclusion drawn by these courts cannot be called illogical, and there can be no doubt that if the rule of these cases is correct, the verdict in the case at bar is sustained by ample testimony. But it is said that these cases are not in point, for the reason that the policy involved therein was not like that in the case at bar, containing only the clause that the deceased was insured "against bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death," while the policy in question here goes farther. Counsel say that in the Meyer case, supra (and Benefit Assn. v. Armbruster,
Other cases do not, perhaps, go quite as far as the Arkansas and Alabama cases, but at the same time hold that in order that a bodily infirmity may defeat a claim for double compensation, or for damages caused by accident, it must be the proximate cause or one of the proximate causes of the death, and that in order that it may be so considered, it must be of a substantial nature, and must be more than merely a condition. Thus it was said in Thornton v. Travelers Insurance Co.,
"But if the existence of the hernia in the system of the insured at the time of the accident did not substantially contribute wholly or partly, directly or indirectly, in bringing about the injury, but merely aggravated the consequences of the accident, then the plaintiff would be entitled to recover."
In Driskell v. Insurance Co., 117 Mo. App. 362, 369, 93 S.W. 880, 882, the court said:
"If, under the peculiar temperament or condition of health of an individual upon whom it is inflicted, such injury appears as the active, efficient cause that sets in motion agencies that result in death, without the intervention of any other independent force, then it should be regarded as the sole and proximate cause of death. The fact that the physical infirmity of the victim may be a necessary condition to that result does not deprive the injury of its distinction as the sole producing cause. In such case, disease or low vitality do not arise to the dignity of concurring causes, but, in having deprived nature of her normal power of resistance to attack, appear rather as the passive allies of the agencies set in motion by the injury."
This statement was approved by the Supreme Court of Missouri in the case of Wheeler v. Fidelity Casualty Co.,
In the recent case of Runyon v. Casualty Co., 9 N.J. Misc 487, 154 A. 397, in which the decedent died as a result of a broken hip, it was said: *20
"There is testimony from which the jury could have found that paralysis agitans was, with Mr. Runyon, an incurable malady which would have remained with him throughout his life, but would not cause death; that the presence of the ailment had, at the time of the accident, lessened the resisting power of the body * * *. With the case in such a posture, the jury could have found that the only contribution of the paralysis to the death was a reduction in the power of the body at the time of the fracture to resist the shock. * * * During the life of the policy, the assured was injured, and died as the result of the injury. His death was not the culmination of two parallel or participating causes, of which disease was one and accident was the other; nor was it the result of one of these accentuated or made more acute by the other. It was the direct result of the accident, which might or might not have been fatal had not the bodily vitality been impaired. The accident caught him as he was and laid him low. Against that we think he was insured; otherwise there could be no recovery in any case of death by accident where the victim, had he been posessed of perfect health, might have successfully combatted the ravaging ills that follow immediately in the wake of physical crash."
In the case of Continental Casualty Co. v. Lloyd,
"It (the jury) had the right to find that the accidental fall was the cause that put his life in jeopardy, because it incited the fatal energy of the tumor, which was at least dormant, and would have remained so for an indefinite period, and, perhaps, until death from some other cause would have supervened. The tumor had impaired the resisting strength of the artery, but had not effected immediate danger to life. It was proper under the evidence for *21 the jury to view the impairment as a condition, and not as a cause, and to find that the fall was the originating, efficient, direct and proximate cause of death; that is, that the fall set in motion a force that progressed upon present existing conditions in natural, usual sequence to effect the fatal result. * * * Who knows that the artery would not have been ruptured by the fall if it had been in a normal condition? Or who can tell that the insured would not have died from some other cause if the fall had not animated and accelerated the energy of the tumor? * * * From these considerations it seems clear that the jury, in its search for the proximate cause of death, had the right to conclude that even though the fall would not have produced death but for the impaired artery, the tumor at most was a remote, and not a proximate efficient cause."
In Silverstein v. Metropolitan Life Ins. Co.,
"We think the evidence sustains a finding that the ulcer was not a disease or an infirmity within the meaning of the policy. Left to itself, it would have been as harmless as a pimple or a tiny scratch. Only in the event that it was progressive would it become a source of pain or trouble. If dormant, as it was found to be, it was not only harmless in itself, but incapable of becoming harmful except through catastrophic causes, not commonly to be expected. 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 man. * * * `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, then there may be recovery *22
even though the accident would not have caused that effect upon a healthy person in a normal state.' Leland v. Order of United Commercial Travelers of America, supra, at page 564 of 233 Mass.,
In Cretney v. Woodmen Acc. Co.,
"The holding here does not mean that a man must be in perfect physical health in order that there may be a recovery on an accident policy such as the one in suit here. A man insured may be in advanced years, he may be suffering from some disease which has weakened his resistance, yet he may be the victim of an accident which is the sole cause of his death, although death might have been less likely had he been in better physical condition."
Similar, in effect, are the following cases: Miller v. Fidelity Casualty Co., (C.C.) 97 Fed. 836; Mutual Life Ins. Co. v. Dodge, (C.C.A.)
A policy of insurance should not, of course, be so strictly construed as to thwart the general object of the insurance. *23
To do so would, in the long run, subserve the purposes neither of insurers nor insured. It can hardly be assumed, in the absence of a contract clearly to the contrary, that the parties to the contract meant to have the double indemnity, or any other provision for cases of accident, apply only in case the insured is in perfect health at the time of the accident. If courts made such an assumption under an ordinary contract such as that involved in the case at bar, all accident insurance would probably soon be a matter of the past. But counsel for the defendant assert that in view of the facts in this case, no recovery can be had herein under any of the authorities. We do not so construe them. Counsel's claim that no recovery should be permitted herein would, doubtless, be valid, if it were conceded that any bodily infirmity which, from a scientific standpoint, contributes to the death, would have that effect under the terms of the contract, and that is virtually what counsel, upon ultimate analysis, insist on. They apparently overlook the difference between proximate cause on the one hand, and remote cause or a condition on the other, as recognized in law, not bearing in mind, seemingly, that a contributing cause from a scientific standpoint is not necessarily a proximately contributing cause from a legal standpoint. Silverstein v. Metropolitan Life Insurance Co., supra. The foregoing cases as a whole, or at least many of them, all dealing with policies similar to that in the case at bar, clearly show, we think, that, in solving the problem before us, we cannot overlook the distinction between proximate and remote cause, and that if a disease, bodily infirmity, or predisposing cause in fact existed, as claimed, still unless it can be said to be one of the proximate causes instead of only the remote cause or condition, recovery should not, on that account, be denied. We said in Lemos v. Madden,
"A condition which could not reasonably be expected to endanger, and which but for some independent cause without which the injury would not have occurred would not have endangered, does not ordinarily amount to a proximate cause."
And in case of doubt, under the evidence, the question must be left to the jury. Continental Casualty Company v. Lloyd,
In the case at bar the accident, as well as the cause of the death, are shown by the evidence. Counsel for the defendant argue that the diseased condition of the deceased may have caused him to go off the road. But we think that it was at least a question for the jury whether *25
that was true. Our attention is called to the testimony of Dr. Kamp, fortified by that of Dr. Hillkowitz, that the decedent's going off the road, as well as his mental condition subsequently, might have been caused by reason of the decedent's arteriosclerosis. But Dr. McClellan was positive that arteriosclerosis had nothing whatever to do with the decedent's death, and this would seem to include the stages preliminary to death. Nor can we overlook the testimony of Dr. O'Connor and Dr. Replogle that the blood pressure of the deceased, indicative of the presence or absence of arteriosclerosis, was normal during the decedent's life time. Furthermore, there was evidence indicating that the accident was caused by reason of another car "crowding" the car of the deceased. So too, we think, there was sufficient evidence for the jury to determine whether the accident was such as to cause, or was the sole proximate cause of, the injury of which the decedent died. Doctors Replogle and McClellan so testified. And, as already stated, we cannot say as a matter of law that the facts in this case — the automobile plunging down a steep and deep embankment and against rocks — do not show an accident adequate and sufficient to produce the injury resulting in death. Even Dr. Kamp, defendant's witness, admitted that "hemorrhage of the brain from existing aneurysm perhaps would be caused from shock from running off the road." And, as we read the evidence, the testimony of Dr. Hillkowitz is not clear as to what was the "primary" or "efficient" cause of death. These matters were, we think, a proper subject for medical opinion. U.S. Casualty Co. v. Thrush, 21 Ohio App. 129, 152 N.E. 796. Dr. McClellan, it is true, stated, on cross-examination, that the aneurysm contributed to the death. Scientifically speaking, he was doubtless correct. There is no such thing as a sole cause, from a scientific standpoint, and the doctor might well have added a number of other *26
causes which were contributing causes from that standpoint. Taking his testimony as a whole, however, it evidently was his opinion that, from a legal standpoint, the aneurysm was a condition rather than a proximate cause. Dr. Replogle stated it as his opinion that the rupture at first was small. In this he appears to be corroborated by Dr. Hillkowitz, though his testimony was not quite as clear as could be wished. This, too, we think, was a proper subject for medical opinion, based as it was upon observation of deceased for several days and upon the condition of the deceased immediately after the accident. Similar testimony was given in the case of Jefferson Standard Life Ins. Co. v. Lightsey,
Counsel for the defendant asked the court to submit special interrogatories to the jury, which the court declined to do. The issues herein were simple, in fact the only vital issue was confined to one point, namely, whether or not the aneurysm contributed to or was the cause of the injury of which decedent died, in the sense heretofore pointed out. The court fully instructed the jury on that point, and we cannot say that under the circumstances the court abused its discretion. Opitz v. Newcastle,
The judgment herein must accordingly be affirmed, and it is so ordered.
Affirmed.
KIMBALL, Ch. J., and RINER, J., concur. *29