If the evidence as to the cause of death in this case be found to be substantially the same as that presented in the Metropolitan case, a reversal should necessarily follow. The question here is whether the testimony in this case so differs from the testimony in the Metropolitan case as to compel a contrary disposition. To answer *Page 35 that question it becomes necessary to examine in detail the medical testimony presented by plaintiff in each of the two cases.
In the Metropolitan case, three physicians testified for plaintiff. Dr. S.E. Stinnette, the attending physician, stated that the cause of death was "hemorrhage, due to trauma or injury" (218 Minn. 278, 15 N.W. [2d] 491). He was not asked and said nothing of leukemia as a contributing cause. In the instant case, his testimony on direct examination in full on this phase of the case is as follows:
"A. I think he died from the result of an accident, a blow on the side of his neck, left neck.
"Q. * * * Would a blow on the neck have any relationship between the black and blue on the neck and the hemorrhages in the neck area, and mediastinum, and lungs such as you have just testified to?
"A. It certainly would.
"Q. A blow could produce such a hemorrhage?
"A. It could."
On cross-examination he said:
"A. There was an accident.
* * * * *
"Q. Dr. Stinnette, is it your contention that the leukemia from which Mr. Kundiger was suffering played a part in his death?
"A. In my opinion, it did play a part in his death.
"Q. It is your opinion that the leukemia was a contributingfactor in his death?
"A. I think it was.
* * * * *
"Q. Isn't it correct that a person having leukemia is much more subject to hemorrhages received from a blow than a person would be with normal health?
"A. Yes, I believe so.
* * * * *
"Q. In giving your answer as to your opinion of his death, doctor, *Page 36 how severe a blow are you assuming that this man received?
"A. I don't know how to measure severity. I would say enough to rupture the blood vessels in his neck, and light enough that it might have been taken by some normal person.
"Q. * * * Assuming that Mr. Kundiger did not have leukemia, have you art opinion as to whether or not his death would have resulted from the blow that you assume he had?
"A. That theoretically I could answer either way. I don't know. I don't believe he would.
"Q. You don't believe he would have?
"A. I don't believe he would have died if he had not had leukemia. A more normal individual of the same type, receiving a blow on the neck as he probably suffered and received, but there is no way of knowing what he had on. I believe a more normal individual probably could have died from hemorrhages received from that blow.
"Q. Am I correct in summarizing your testimony, as part ofyour testimony, doctor, when you say that in, your opinion thatleukemia was a contributing cause to his death?
"A. Yes.
"Q. And you don't believe he would have died unless he hadbeen leukemic or did not have another similar disease?
* * * * *
"Q. You answered it that way?
"A. Yes." (Italics supplied.)
As stated in the Metropolitan case, there was no testimony by Dr. Stinnette that leukemia was a contributing cause of death.
Plaintiff also called Dr. Roy C. Heron, a deputy coroner of Ramsey county, as a witness in both trials. In the Metropolitan case, he testified that he found black-and-blue areas on both sides of the neck and jaw. In the instant case, when asked about the cause of death, he testified:
"A. My opinion is that he case to his death by extensive hemorrhages into the mediastinal space and into the lungs. *Page 37
"Q. Have you an opinion as to the cause of that hemorrhage?
"A. I have.
"Q. What is your opinion, doctor?
"A. It was due to trauma."
On cross-examination he was asked:
"Q. And it is also correct, isn't it, that a person with leukemia is much more likely to suffer a hemorrhage from a blow than would a person in normal health?
"A. I believe so."
In the instant case he was asked:
"Q. In your opinion did — it is a fact that Mr. Kundiger hadleukemia and it contributed to his death?
"A. It is my opinion, it did.
"Q. It did?
"A. It did.
* * * * *
"Q. And now having in mind that same type of blow, are you of the opinion that Mr. Kundiger's death would have resulted if he had been a normal person, in normal health?
"A. That is my opinion.
* * * * *
"Q. * * * Assuming a blow of the force and severity that you have in mind that Mr. Kundiger received, would that blow in your opinion have caused the death of a person in normal health?
"A. I believe it would." (Italics supplied.)
Thus Dr. Heron testified inconsistently that leukemia contributed to the death of Kundiger and also that a blow such as he assumed Kundiger received would have caused the death of a person in normal health.
In the Metropolitan case, Dr. Robert M. Burns was called by plaintiff and testified that insured (218 Minn. 279,15 N.W. [2d] 492) "died as a result of an injury which caused a hemorrhage and swelling and congestion into the tissues of the neck and down *Page 38 into the lungs." In his testimony nothing was said about leukemia contributing to the death. Dr. Burns was not called as a witness in the instant case.
Dr. James C. McCartney, who performed a post mortem, was called by defendant, and testified that the cause of death was lymphatic leukemia. Dr. Max H. Hoffman, called by defendant, also expressed his opinion that death was caused by lymphatic leukemia. The record indicates that in November 1940 Kundiger's ailment was diagnosed as leukemia. He died February 2, 1943.
On the medical testimony offered by plaintiff herself, it cannot be said that she sustained the burden of proof that death resulted solely from injuries received through accident. It was incumbent upon plaintiff, as beneficiary, to prove that Kundiger's death resulted solely from accidental causes. This "is not a case where the accidental injuries claimed either caused the disease or lit it up from a dormant condition," as the trial court observed. In my opinion, the medical testimony in this case is so substantially different from that produced in the Metropolitan case as to compel an opposite result.
On this medical testimony and the other testimony in the case, Judge Michael stated in his memorandum:
"The evidence here conclusively shows that the disease leukemia was an efficient, contributing cause, at least, to the death of the insured.
"All of the experts agree on that. Dr. Stinnette and Dr. Heron, the plaintiff's two experts expressly stated that in their opinion the disease contributed to the death.
"These two physicians the day after his death conducted a postmortem examination in which they claim to have made an extensive examination of the body.
"They joined in the death certificate stating that death was caused by leukemia.
* * * * *
"So it seems to me entirely clear that there is no question here but what this fatal disease was at least an efficient contributing *Page 39 factor causing the death, if not the sole means, and under the express language of this policy, if that is true, then there is no liability on the part of the defendant."
In White v. Standard L. A. Ins. Co. 95 Minn. 77, 80,103 N.W. 735, 736, 5 Ann. Cas. 83, this court laid down these rules:
"* * * if the injury be the proximate cause of death, the company is liable, but, if an injury and an existing bodily disease or infirmity concur and co-operate to that end, no liability exists. * * * in cases where the insured is afflicted at the time of the accident with some bodily disease, if the accidental injury be of such a nature as to cause death solely and independently of the disease, liability exists."
And in Wolfangel v. Prudential Ins. Co. 209 Minn. 439, 441,296 N.W. 576, 577, this court said:
"While this contract of insurance must be construed and applied as written, any construction so unduly restrictive that it would defeat the ends of accident insurance must be avoided. It is not to be supposed that a contract like this is limited in coverage only to those entirely healthy and free from all physical defects and deficiencies. Neither may it be said that coverage exists wherever accident has coöperated with physical defect or deficiency to produce death. * * * It will be seen that the problem is largely one of causation."
In the Metropolitan case, Mr. Justice Streissguth, speaking for the court, said (218 Minn. 281, 15 N.W. [2d] 493):
"The rule of proximate cause, as applied to actions of negligence, cannot, however, be applied in its full scope to contracts of this nature. White v. Standard L. A. Ins. Co.supra. This is true because under the parties' express contract a recovery can be had only if death resulted 'solely' (not proximately) from injuries received through accidental means, and, if the insured's condition was a contributing cause, there can be no recovery. Ackermann v. Minnesota Commercial Men's Assn. 184 Minn. 522, 239 N.W. 229; *Page 40 Ryan v. Metropolitan L. Ins. Co. 206 Minn. 562, 289 N.W. 557; Kingsland v. Metropolitan L. Ins. Co. 97 Mont. 558,37 P.2d 335."
On the medical testimony in behalf of plaintiff, as presented to the court in the record in this case, different from that presented in the Metropolitan case, death did not resultsolely from injuries received through accidental means, and leukemia, from which insured was suffering, was a contributing cause.
For the reasons above set out, I respectfully dissent.