Pacific Mutual Life Insuance v. Meldrim

Jenkins, P. J.,

dissenting. The writer has been unable to satisfy himself that the conclusion reached by the majority of the court on the difficult question presented by this case is the correct one. If, under the statements contained in the petition, the proximate cause of the death can properly be taken to be the involuntary slipping by the insured from his pillow while lying in bed, then the mere fact that the dangerous open wound caused by the previous operation for appendicitis might have accelerated or even contributed to the fatal efect of such an accident would not preclude a recovery. In the Hall case, cited in the opinion, this court held that where the death of the insured had resulted from a fall upon a street pavement, the mere fact that the decedent was already afflicted with an incurable malady which would necessarily and within a short time have terminated his life would not furnish a valid reason whv the insuring company would not be liable for his death, when actually brought about by such accidental cause, even though the antecedent disease might not only have accelerated but even contributed to the death. The Supreme Court decided the Thornton case, also cited in the opinion, on this same theory. The *493doctrine thus recognized both by the Supreme Court and by this court would seem to be that under the terms of such an accident-insurance policy, the mere fact that the effect of an accidental injury may have been aggravated or contributed to by the existence of an antecedent disease does not preclude a recovery when it appears that such effect, however else it may have been influenced, was nevertheless actually brought about by an accident as its sole and proximate cause. In other words, the course of an event may be affected by superinducing agencies so as to alter the final actual result, without displacing as the real and moving cause the act or thing which put the incident into operation. The policy in the instant case insured the decedent against bodily injury sustained from accidental means, and such accidental means must constitute, in the sense already indicated, the direct, independent, and exclusive cause of death. Thus, if the dropping of the head of the decedent from his pillow could be properly accounted an independent accident within the meaning of the policy, and the effect of the antecedent disease and of the operation for its cure could be taken as merely aggravating the effect of such independent accidental injury, there would seem to be no reason why a recovery could not be had under the policy. But could this be true in a case where the accident is not independent of the disease, but where the alleged incident, in order to be treated as an accident at all, must be taken and considered in connection with the disease as furnishing the sole, direct, and moving cause from which it must have originated? Just as it would not do to say that an accident ceases to be the.sole and exclusive cause of death within the meaning of the policy simply because the course of events set in operation by the accident may be subsequently influenced, and the final result contributed to, by superinducing agencies, just so it certainly would not do to say that because the happening of the accident might itself have been influenced or contributed to by an antecedent disease, then and for that reason the accident can not be accounted as independent within the meaning of the policy. However, it is a different thing for the disease to aggravate, or affect an independent injury caused by an accident, and it is also a different thing for the happening of an independent accident to be influenced or contributed to by an antecedent disease, from a case where the alleged incident amounts to nothing at all except *494in so far as it results from and relates to the disease. Under tbe pleadings in the ease at bar it would seem that, after all, the wound necessarily caused the death, for the reason that the wound furnished the sole and direct basis of the accident, since without the wound the mere slipping of the decedent from his pillow, even though involuntary, could not by any stretch of the imagination be accounted an accident at all within the meaning of the policy. If the policy had been written to insure in case of death from appendicitis, or an operation incident thereto, it surely could not possibly be said that the incident alleged as the accident in this case would amount to such an independent, intervening cause as would prevent a recovery in such a case as that; .and if this be true, it necessarily follows that' the incident set forth is only such an occurrence as would ordinarily be likely to happen in the natural course of events. To the writer it thus appears from all of the allegations of the petition that the real and proximate cause of the insured’s death must necessarily have been the danger'ous open wound left by the operation for appendicitis, • and that death resulted from such wound in the natural course of events without the intervention of any independent accident within the meaning of the policy; this being true for the reason that the disease could not be accounted as merely contributory to the effect of the accident, there being nothing whatever for it to contribute to—there being no accident, except as it was directly and solely dependent upon the disease to make it so.