62 P.2d 866 | Kan. | 1936
The opinion of the court was delivered by
This was an action on an accident insurance policy. The jury answered special questions and returned a general verdict for plaintiff for $640, on which judgment was rendered. Defendant has appealed.
The principal question presented here is whether under the facts shown and the terms of the policy plaintiff is entitled to recover any sum. The policy was issued August 22, 1930, and kept in force by successive payments of premiums. On June 19, 1934, plaintiff sustained injuries to his left thigh and a sacroiliac sprain in an automobile accident. He was treated for these injuries at a hospital and at home, but was able to return to his work, that of a postal clerk, in August, 1934. For that injury defendant settled with him August 3, 1934. At the time he returned to work he had not fully recovered, and used a cane. His condition continued to improve; he could do his work more easily, and resumed most of his normal activities, among others attending shows and dances. In November, 1934, he went to a doctor because his left leg was not as well as he thought it should be. At that time he knew of no trouble in his back. Every few days, from November 17, 1934, until the latter
On March 9, 1935, while getting out of the bathtub, plaintiff slipped and fell in such a way that the “small” of his back struck the faucets of the tub, causing him serious injury. He was taken to a hospital, where an operation was performed upon the vertebrae of the back. He was in the hospital ten days, then confined to his home two and one half months, when he returned to his work at the post office, but was able to work but an hour or two a day, when he would have to lie down, and was paid for the time he worked. Since there is no complaint here of the amount of the verdict if plaintiff is entitled to recover, we shall not further detail his injuries. In making his claim under the policy for that accident he was asked, and answered, among other questions, the following:
“Q. Are you now, or have you ever been, subject to or affected by any other injury or disease, deformity, infirmity or weakness? A. Yes, back weakened in first injury.”
The policy sued upon contains this provision:
“This policy insures against — (1) the effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through external, violent and accidental means . . .”
Appellant contends that under correct rules of law applied to the evidence in this case the second accident, exclusive of all other causes, did not create the disability for which this action was
The legal question raised is the interpretation to be given to the language of the policy, “exclusively of all other causes.” On this there are two lines of authorities. One line of authorities, upon which appellant relies, construes the language used in the policy to mean that if the insured had any disease or physical ailment, from any cause, at the time of,the accidental injury for which -he seeks to recover under the policy, and is unable to show clearly that such disease or ailment was not reflected in some degree in the injurious, results of the accident, there can be no recovery under the policy. Under these authorities it is practically impossible for any but the physically sound to recover on an accident policy containing the language used, or tantamount to that used, in the policy here involved, and they place the burden on plaintiff to show that the full effect of the injury following the accident was independent “of any preexisting disease, or bodily infirmity, as a contributing cause thereof.” (See Crandall v. Continental Casualty Co., 179 Ill. App. 330, 339, and Kerns v. Aetna Life Ins. Co., 291 Fed. 289, citing many earlier cases.)
The other line of authorities, recognizing the fact that many persons not physically sound in every respect carry accident insurance policies, take what seems .to us a more rational view and construe the language of the policy to mean that if the accident be shown to be the cause of the injury for which the action is brought plaintiff can recover. (Benefit Ass’n of Ry. Employees v. Armbruster, 224 Ala. 302, 140 So. 356; Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995; Missouri State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733; Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 172 Atl. 777; Jones v. Gen. Accident, Fire and Life Assurance Corp., Ltd., 118 Fla. 648, 159 So. 805; Pacific Mutual Life Ins. Co. v. Meldrim, 24 Ga. App. 487, 101 S. E. 305; Kokomo Life, Etc., Ins. Co. v. Wolford, 90 Ind. App. 395, 167 N. E. 156; Provident Life & Accident Ins. Co. v. Watkins, 256 Ky. 645, 76 S. W. 2d 889; Carnelious
This list is far from complete. A much more extended one may be found in Accidental Means, by Cornelius, ch. V, pp. 112 to 159, where the author has classified the cases under stated propositions. Without passing upon the accuracy of this classification, most of the courts look to the evidence to see whether the accident caused the injury for which the action was brought. Many of the cases use the term-“proximate cause,” as do some of the leading authorities. (6 Couch on Insurance, ch. XXV; Richards on the Law of Insurance; 4th ed., § 393 et seq.; 1 C. J. 432, 452; 14 R. C. L. 1265; 6 Cooley’s Briefs on Insurance, 2d ed., p. 5297 et seq.) Cornelius, p. 147, criticizes the use of the term “proximate cause,” but the term has also been thought not to be the best to use in negligence cases. In some of the cases cited these terms are used: “efficient and predominating cause,” “independent and sufficient cause,” “sole moving and active cause.” But, without regard to the characterizing words used, the proper inquiry, and the one usually made, is whether the injury for which suit was brought was caused by the accident. When that is controverted, generally it is held to be'a question for the jury.
. This case was tried in accord with the line O'f authorities last above referred to: The court instructed the jury if the accident of March 9, 1935, was the proximate cause of the injuries for which plaintiff sought to recover they should find for plaintiff. This instruction was not erroneous.
Appellant cites Insurance Co. v. Despain, 77 Kan. 654, 95 Pac. 580, as holding to the contrary. We do not so read the case, especially in view of the later appeal in the same case (81 Kan. 722, 106 Pac. 1027) which makes it clear neither the litigants nor the court so construed it.
There is not much else in this case. While there is a conflict in
A question is raised as to misconduct of the court because of a remark concerning the evidence made within the hearing of the jury. No point was made of this upon the hearing of the motion for a new trial and it is not available here. In any event, perhaps it would not be held sufficient to require a reversal.
The judgment of the court below is affirmed.