Patterson v. Ocean Accident & Guarantee Corp.

25 App. D.C. 46 | D.C. Cir. | 1905

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The declarations of the assured, testified to by his wife and brother-in-law, were properly admitted as tending to show not only that he was then suffering severe bodily pain, but also that he had sustained an accidental strain in the treatment of a patient. They come clearly within the rule of competency, as part of the res gestee, that was enounced by the Supreme Court of the United States in Travellers’ Ins. Co. v. Mosley, 8 Wall. 397, 404, 405, 19 L. ed. 437, 440. See also Mutual L. Ins. Co. v. Hillmon, 145 U. S. 285, 296, 36 L. ed. 707, 711, 12 Sup. Ct. Rep. 909; Washington & G. R. Co. v. McLane, 11 App. D. C., 220, 222.

The statements made by the assured to his attending physician, on the day after the alleged accident, tending to show his bodily pain, the particular location of the same, and the symptoms of his malady were also properly admitted. Northern P. R. Co. v. Urlin, 158 U. S. 271, 274, 39 L. ed. 977, 981, 15 Sup. Ct. Rep. 840.

But it was not error to exclude his statements then made to the physician, tending to show that he had received a strain on the day before, to which he attributed his condition. This was too long after the occurrence to be admissible as part of the res gestae under the rule of the cases before cited.

2. The case was withdrawn from the jury on the ground that the evidence offered by the plaintiff was not sufficient, as matter of law, to establish liability on the part of the defendant.

(1) The first question is, Was the evidence sufficient to require submission to the jury to determine whether the assured sustained an accident on March 28, and, if so, whether the same was the actual and direct cause of his death within the meaning of the policy ?

The evidence plainly tended to show that prior to March 28 the assured had been a strong, vigorous, and apparently healthy man; and that on that day he sustained an accidental strain which gave him severe bodily pain and caused the cessation of his labors. The existence of these facts depended upon the, credibility of the witnesses testifying thereto and the weight of their evidence, both of which were within the exclusive province of the jury.

(2) The evidence tending to show that the assured continued to suffer great pain in the same parts of the body until his death, about ten days thereafter, -was strong and undisputed.

' The evidence tending to show that the accidental strain caused the rupture of some ligaments or tissue connected with the liver, or the rupture of the gall bladder or bile duct, thereby becoming the actual, efficient cause of death, is undoubtedly weak, but we are not prepared to say that it was so plainly insufficient as to warrant its withdrawal from the consideration of the jury. Doubting whether all reasonable men must necessarily come to the one conclusion therefrom, that plaintiff had failed to make out a case of death resulting from accident, we are constrained to resolve that doubt in favor of trial by jury. The rule in ordinary cases is that what is the proximate cause of an injury is generally a question for the jury, to be determined as a fact in view of all the circumstances of fact attending it. Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 474, 476, 24 L. ed. 256, 259; Guenther v. Metropolitan R. Co. 23 App. D. C. 493, 510.

Were this an action of damages against a wrongdoer for death resulting from a.n injury caused by wilful or negligent act, the defendant could not escape liability on the mere ground that before the accident there was an existing malady or diseased condition of the liver, gall bladder, or bile duct of the deceased, and that death resulted or was hastened because the injury aggravated the effects of that disease, or the disease aggravated the effects of the injury. The liability exists in such cases if the injury is the predominant, efficient cause of the death, notwithstanding it would not have naturally produced death if there had been no such pre-existing disease. Guenther v. Metropolitan R. Co. 23 App. D. C. 493, 515, 516. That the rule in that case might not be regarded as intended to extend to a case of contract, which was not there involved, it was said: “Whatever the rule may be in an action depending upon the construction of a contract of insurance against accident, under certain limitations and exceptions, as to liability where the death was from disease ‘aggravated and made fatal’ by accident, we do not think it can apply in an action of tort for the benefit of a wrongdoer.”

(3) It remains, now, to consider the question in the light of the stipulations of the contract upon which the action is maintained.

By the first of these the insurance is expressly stated to be, “against accidental bodily injuries caused solely * * * by

external, violent and visible means which shall, independently of all other causes, disable the assured.”

That a strain received in the ordinary course of the assured’s business, if received at all, is an accident within the contemplation of the policy we can have no doubt. United States Mut. Acci. Asso. v. Barry, 131 U. S. 100, 121, 33 L. ed. 60, 67, 9 Sup. Ct. Rep. 755.

The universal rule of interpretation of contracts of insurance of all kinds is that in cases of doubt, that interpretation shall be given which favors the insured rather than the insurer. The particular words quoted would seem to have been intended particularly to apply to a case of disability for which the assured might claim the indemnity stipulated in the policy. But assuming that they were expressly intended to apply to the death indemnity clause, and be read in connection with the words therein providing that death shall result from accidental bodily injuries as the “actual and direct cause thereof,” we think they cannot be regarded as clearly meaning that there shall be no recovery in a case where there was a pre-existing diseased condition of the body, — a predisposing cause of death, as it has been called, — notwithstanding the accidental injury may have been the exciting, efficient, predominant cause.

Their meaning, considering them together or separately, is, in our opinion, that the intervening accident must be the proximate, direct cause of death, and nothing more. This conclusion is supported by the following authorities: Fetter v. Fidelity & G. Go. 174 Mo. 256, 61 L. B. A. 459, 97 Am. St. Bep. 560, 73 S. W. 592; Horsfall v. Pacific Mut. L. Ins. Go. 32 "Wash. 132, 63 L. B. A. 425, 98 Am. St. Bep. 846, 72 Pac. 1028; Modern Woodman Acci. Asso. v. Shryoclc, 54 Neb. 250, 39 L. R. A. 826, 74 N. W. 607; Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 353, 17 L. E. A. 753, 30 N. E. 1013. See also Winspear v. Accident Ins. Co. L. R. 6 Q. B. Div. 42, 45; Travelers’ Ins. Co. v. Murray, 16 Colo. 296, 25 Am. St. Rep. 267, 26 Pac. 774; Atlanta Acci. Asso. v. Alexander, 104 Ga. 709, 42 L. R. A. 188, 30 S. E. 939; Omberg v. United States Mut. Acci. Asso. 101 Ky. 303, 72 Am. St. Rep. 413, 40 S. W. 909.

The doctrine is well expressed by the supreme judicial court of Massachusetts, in Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 17 L. R. A. 753, 30 N. E. 1013, in the following words: “The law will not go farther back in the line of causation than to find the active, efficient, procuring cause of which the event under consideration is the natural and probable consequence, in view of the existing circumstances and conditions. * * * 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.”

It is true that there are cases of highly respectable authority, some of which directly and others indirectly support the contention of the appellee. These have been carefully examined, but we shall not review them, as that has been done in a satisfactory manner by the supreme court of Nebraska, in Modern Woodman Acci. Asso. v. Shryock, 54 Neb. 250, 39 L. R. A. 826, 74 N. W. 607. It may be remarked, however, that the able opinion in the case of National Masonic Acci. Asso. v. Shryock, 20 C. C. A. 3, 36 U S. App. 658, 73 Fed. 774, upon which the appellee strongly relies, is founded upon the terms of a policy quite different from that involved in this case. Therein it was expressly stipulated that the insurance does not cover “death or disability resulting wholly or in part, directly or indirectly, from any of the following causes: * * * disease or bodily infirmity. * * *”

Other provisions of this policy tend to confirm our view of the interpretation of the words before quoted. The assured was required to answer whether his hearing or vision was impaired, and whether he had ever had or been subject to fits or diseases of the brain. His negative answers thereto were declared to be special warranties, the untruth of which, in any respect, would render the policy null and- void. It is reasonable to presume, therefore, that an affirmative answer to any one of these questions would have resulted in the denial of the policy. If, then, it was the intention of the insurer not to become liable in the event that an accident should result from any other malady or unknown infirmity, or in the event that a pre-existing malady, uninquired of, and probably unknown to the assured,' should be developed and brought into sudden operation by an accidental injury, and produce death, why was it not expressly provided for, also, in the policy, and brought to the actual knowledge of the assured ? Again, this form of policy was intended for the insurance of women as well as men, and, as we have seen, expressly stipulates that it shall not cover “death or injury to a woman wholly or in part attributable to child-birth or pregnancy, although such death or injury may have been accelerated by accident.” If the construction of the previous provision contended for by appellee is the correct one, this stipulation is unnecessary and unimportant. If not, its materiality and importance are obvious.

The insurer writes its contracts, and its agents are expressly forbidden the power to alter any of their terms or waive any of their conditions without the consent in writing of its general manager. It is eminently just, therefore, that'it should not be permitted to escape liability through any limitation thereof not fairly and reasonably disclosed by the terms and conditions of the contract to those soliciting insurance or accepting it at the solicitation of the insurer’s agents.

3. The last question for consideration arises under the clause of the policy which provides that “any medical adviser of the corporation shall have the right and opportunity, as often as he may require, to examine the person or body of the assured in respect to alleged injury or cause of death, and any refusal on the part of the assured, or of the beneficiary, or of the legal representatives of the assured, to comply with this provision, shall operate to defeat the policy.”

We are not advised that the withdrawal of the case from the jury was founded on the evidence relating to the defense under this clause, but it presents a question that must necessarily be determined in view of the new trial that will be awarded.

We cannot agree with the general contention of the appellee that this right to examine the body includes also the right of autopsy or dissection, much less exhumation, for that purpose.

As heretofore remarked, where there is any doubt as to the meaning of the terms and conditions of a contract of insurance, it is to be resolved in favor of the assured; and this rule of construction has its strongest application in relation to those that would work the forfeiture of a right otherwise maintainable. It is also a reasonable and well-established rule of interpretation that the terms used are to be understood in their ordinary and popular sense. Whatever meaning the word “examine,” in relation to the body of a deceased person, might convey to medical experts, we think it clear that, in popular understanding, it does not include the right of dissection.

The prejudice, if it may be so called, which so generally prevails, and especially among the relations and friends of a deceased person, against the submission of the body to dissection, would doubtless prevent many persons from accepting insurance containing an express condition extending that right to the insurer if considered material for his protection. Sudduth v. Travelers’ Ins. Co. 106 Fed. 822; Ewing v. Commercial Travelers’ Mut. Acci. Asso. 55 App. Div. 241, 66 N. Y. Supp. 1056, 170 N. Y. 590, 63 N. E. 1116.

It would seem from the evidence before recited, that the purpose of the insurer was not to view or examine the appearance of the body merely, but to dissect the same. If the question be raised upon another trial it will be the duty of the court to instruct the jury in accordance with this view of the effect of the clause under consideration, and to submit to them the single question whether, upon demand reasonably made therefor, the plaintiff, or those acting for her, refused to permit the medical advisers of the insurer to examine the body in the sense of that word as here given. A failure to extend that permission, upon demand made at a reasonable time and place before burial, would bar recovery upon the policy.

For the reasons given, the judgment will be reversed, with costs, and the cause remanded with direction to award .a new trial. It is so ordered. Reversed.