Browning v. Equitable Life Assur. Soc.

Defendant by petition for a rehearing assails the opinion of the court, 94 Utah 532, 72 P.2d 1060, asserting that the court overlooked entirely the provisions of Subdivision "C" of "Additional Provisions" of the policy of insurance, and which defendant now contends are controlling, although in the briefs on original hearing they were scarcely mentioned; and also seeks a re-examination of the legal questions which it admits were discussed and considered at length in the opinion rendered. As to the matters specifically and topically discussed in the former opinion, we deem it unnecessary to enter into any discussions thereof. Counsel have advanced no new arguments nor furnished any authorities we did not fully consider when the original opinion was written. We shall, however, discuss briefly the effects of Subdivision "C" of "Additional Provisions" of the policy, and cite a few additional reasons why the position of the court on all matters was well taken. In writing the original opinion, we fully considered the language and effect of the clause which appellant now thinks we entirely overlooked. We discussed the content and effect thereof but did not quote the language of Subdivision "C". That there may be no misunderstanding of its effect, we now quote some parts of the policy and briefly discuss them. The insurance clause reads:

"The Equitable Life Assurance Society of the United States hereby insures the person named as applicant * * * subject to the provisions, conditions and limitations herein contained, against loss resulting directly and independently of all other causes, from bodily injuries effected during the term of this policy solely through external, violent and accidental means, and against disability from disease contracted during the term of this policy, as follows:"

Then follow in eight parts the specifications of the indemnities to be paid according to the nature and extent of the injury or disability. They constitute the insuring provisions of the policy. The nature, extent and amount of the insurance provided are therein set forth, and the limits of the field covered are specified. When an insured claims a 1, 2 right to recover under the accident provisions of the policy, all he need do is bring himself within the field therein defined and show his injury or disability was proximately and predominantly caused through violent, external and accidental means. He then has brought himself within the policy, and the terms thereof have been met. He is not required to show there were no latent causes, or other conditions which might have contributed to the result, indirectly or in part. His duty is affirmative; he is not charged with the duty of negativing anything. When he brings himself within the insuring clause he has made his case — should we use that hackneyed but inapt expression, a prima facie case — and any exceptions or conditions which would then deny him relief, take him out of the indemnity provisions, render them inoperative as to him, are matters of defense, and the burden thereof rests upon the insurer.Vernon v. Iowa State Traveling Men's Ass'n, 158 Iowa 597,138 N.W. 696; Jones v. United States Mutual Accident Ass'n,92 Iowa 652, 61 N.W. 485; Carnes v. Iowa State Traveling Men'sAss'n, 106 Iowa 281, 76 N.W. 683, 68 Am. St. Rep. 306. To further demonstrate the correctness of our holding that the language, "resulting directly and independently of all other causes", and "solely through external, violent and accidental means", does not bar recovery by the insured under a record such as this, we cite, out of many, the following well reasoned cases, construing the meaning and effect of similar clauses: Wheeler v. Fidelity Casualty Co., 298 Mo. 619, 251 S.W. 924 (a case not unlike this one); American Bonding Co. v. Morrow,80 Ark. 49, 96 S.W. 613, 117 Am. St. Rep. 72.

"Starting with a bodily injury, all morbid changes in the exercise of vital functions or the texture of the bodily organs which result from or are induced by such injury should be regarded as the effect thereof, and not as independent causes. When death results from any such morbid change so resulting from or induced by such injury, the injury, and not the morbid change induced by it, is the cause of death. Beginning with a primary cause, conditions induced by such cause are effects thereof; and every condition so induced must be considered in relation thereto as an effect, and not as a cause." Ward v. Aetna Life Ins. Co.of Hartford, 82 Neb. 499, 118 N.W. 70, 72.

The following cases also support this position: Fetter v.Fidelity Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459, 97 Am. St. Rep. 560; Driskell v. United States Health Accid. Ins. Co., 117 Mo. App. 362, 93 S.W. 880; ContinentalCasualty Co. v. Lloyd, 165 Ind. 52, 73 N.E. 824; Thornton v.Travelers' Ins. Co., 116 Ga. 121, 42 S.E. 287, 94 Am. St. Rep. 99; Modern Woodmen Accid. Ass'n v. Shryock, 54 Neb. 250,74 N.W. 607, 39 L.R.A. 826; Freeman v. Mercantile Mutual Accid.Ass'n, 156 Mass. 351, 30 N.E. 1013, 17 L.R.A. 753; Lawrence v.Accident Insur. Co., 7 Q.B.D. 216; Leland v. Order of UnitedCommercial Travelers of America, 233 Mass. 558, 124 N.E. 517;Fidelity Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A., N.S., 493; Illinois Com'l Men's Ass'n v. Parks, 7 Cir.,179 F. 794, 103 C.C.A. 286; Ludwig v. Preferred Accid. Ins. Co.,113 Minn. 510, 130 N.W. 5; Collins v. Casualty Co. ofAmerica, 224 Mass. 327, 112 N.E. 634, L.R.A. 1916E, 1203;Patterson v. Ocean Accid. Guar. Corp., 25 App. D.C. 46;Manufacturers' Accid. Indem. Co. v. Dorgan, 6 Cir.,58 F. 945, 7 C.C.A. 581, 16 U.S. App. 290, 22 L.R.A. 620; WesternCom'l Travelers' Ass'n v. Smith, 8 Cir., 85 F. 401, 29 C.C.A. 223, 56 U.S. App. 393, 40 L.R.A. 653.

Bear in mind that there are no exceptions in the insuring clause; it contains no provisions about bodily infirmities, bacterial infections, or disease, or other exceptions within the field otherwise covered by the insuring clause. Such limitations or exceptions as are set forth in the insuring clause must be met by the insured; but limitations, exceptions or conditions which may relieve the insurer from 3 liability, which may be set forth in the policy outside of the language of the insuring clause, or which may exist outside of the policy entirely, must be made and established by the insurer to escape liability thereunder.

Referring back to the policy, after the insuring clause with its eight paragraphs as to indemnities, there is a distinct break in the policy, indicated by a space and a line drawn across the policy. Then, under a heading "Standard Provisions", are fifteen paragraphs which have nothing to do with 4, 5 any matters involved in this case. On the third page are eight paragraphs, numbered "A" to "G", inclusive, entitled "Additional Provisions". Subdivision "C", the one under discussion here reads:

"C. The insurance under Parts I to IV inclusive [the accident provision], shall not cover accident, injury, disability, death or other loss caused directly or indirectly, wholly or partly, by bodily or mental infirmity, hernia, ptomaines, bacterial infections (except pyogenic infections which shall occur with and through an accidental cut or wound), or by any other kind of disease. * * *" (Italics and bracketed expression added.)

Subdivision "A" provides, inter alia, that "disease," when used in the policy, means "sickness." In the opinion rendered, we discussed this question and held that "disease" means apre-existing disease and not a mere bodily condition, temporary disorder, or departure from normal, not amounting to a disease or sickness within the connotation of that term in common parlance. Counsel for insurer now argues that the above quoted provision excepts from the policy any injury or loss to which any of the infirmities named indirectly contributes. But the insurer wrote the policy and it did not except loss to which the ailments specified indirectly contributed, but only those which werecaused by such ailments. It requires no argument to show that a direct or an indirect cause is a different thing entirely from a contributing cause. And therein lies the weakness of counsel's argument, when he does, and asks us to read into the exception the words italicized below so to make the exception read, "caused directly or indirectly, or contributed to, wholly or partly, by * * * disease." An indirect cause is a cause of a cause. It is a cause which sets in operation an active cause. A cause which contributes to a result is an independent cause, not set in operation by the other cause and operating independently of it in tending to produce the result. If the second, or secondary cause, is set in motion or in operation by the primary cause, or if its operation is controlled, directed or influenced in its action or behavior, by the primary or first cause, then the second or secondary cause is not an independent cause, not a contributing cause, operating in parallel, but operates in series and is a result of the first cause.

This provision of the policy means, therefore, that there is excepted from the insurance under Parts I to IV (the accident provisions) injury or loss resulting from an accident or injury, where such accident or injury was caused, brought about, or induced, directly or indirectly by disease, bodily or mental infirmity, hernia, ptomaines, or bacterial 6-8 infection. Thus it seeks to safeguard the company from such cases as where one subject to fits, falling from a fit sustains an injury from the fall, or because of a delirium of fever sustains a physical injury or accident. If the accident or injury resulting in the disability or loss was produced, caused, set in motion or operation by disease or infirmity, then it is indirectly caused by such disease or infirmity and is to be regarded as the result of sickness and not of accident. But if the accident produces, causes or sets in motion or operation a disease or infirmity, the same is deemed the result of the accident and not of disease. With this distinction in mind, much of the apparent differences in the decisions vanish. State v. Kruppa, 176 Iowa 403,158 N.W. 401. In Thornton v. Travelers' Insur. Co., 116 Ga. 121,42 S.E. 287, 94 Am. St. Rep. 99, it is said (page 288):

"The policy contained a stipulation in the following language: `This insurance shall not cover * * * accident, nor injuries, nor disability, nor death, nor loss of limb or sight, resulting wholly or partly, directly or indirectly, * * * from hernia.' * * *

"On the other hand, the insured claims that * * * the company is liable to him for the reason that he was injured as the result of an accident, within the meaning of the policy; and that the mere fact that his injuries might have been aggravated by the existence of the hernia at the time of the injury does not defeat his right to recover under the contract. * * * The question to be determined is whether the fact that the insured had at that time a hernia existing in his system would preclude him from recovering on the policy, when the effect of the injury resulting from the accident was to change the character of the complaint from which he was suffering from that of a reducible hernia, which seems not be necessarily of a serious nature, to that of a strangulated hernia, which seems to be in some cases of a dangerous, and in all cases of a serious, nature. It seems to us that the test to be applied in order to determine whether there is a liability under the contract is whether the condition of the insured in having, at the time of the accident, a reducible hernia, contributed to the accident in whole or in part, directly or indirectly. If it did contribute, the company would not be liable. 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. * * * See 1 Cyc. Law Pro. 263; 1 Am. Eng. Ency. of Law, 2d Ed., 318, note 1; 3 Joyce Ins., § 2833; Nibl. Acc. Ins.2d Ed., § 396;National Ben. Ass'n v. Grauman, 107 Ind. 288, 7 N.E. 233. In construing a policy of life insurance, that interpretation is to be placed upon the words of the policy which is most favorable to the insured, and all ambiguities and doubts are to be resolved in favor of a liability against the insurer. Massachusetts Ben.Ass'n v. Robinson, 104 Ga. 256 (2), 30 S.E. 918, 42 L.R.A. 261; Warwick v. Knights of Damon, 107 Ga. [115], 121, 32 S.E. 951. And especially is this rule of construction to be adhered to and applied in cases where the insured has prima facie established a right to recover under the terms of the policy, and the company is seeking to defeat such a liability by showing that the act complained of is within one of the exceptions reserved in the contract as a defense to an action on the policy. All such exceptions are to be construed strictly against the company, and liberally in favor of the insured."

Atlanta Accident Ass'n v. Alexander, 104 Ga. 709,30 S.E. 939, 42 L.R.A. 188; 1 Am. Eng. Encyc. of Law, 2d Ed. 315 et seq.; Western Com'l Travelers' Ass'n v. Smith, 8 Cir.,85 F. 401, 56 U.S. App. 393, 40 L.R.A. 653; Travelers' Ins. Co. v.Melick, 8 Cir., 65 F. 178, 186, 12 C.C.A. 544, 552, 27 U.S. App. 547, 560, 27 L.R.A. 629; Union Pac. Ry. Co. v.Callaghan, 8 Cir., 56 F. 988, 994, 6 C.C.A. 205, 210, 9 12 U.S. App. 541, 550; Milwaukee, etc., P. Ry. Co. v.Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256; National MasonicAccid. Ass'n v. Shryock, 8 Cir., 73 F. 774, 20 C.C.A. 3, 5, 36 U.S. App. 658; American National Ins. Co. v. Ewing,30 Ga. App. 125, 116 S.E. 921; Finucane v. Standard Accid. Ins. Co., 184 N.Y. App. Div. 280, 171 N.Y.S. 1018; New Amsterdam CasualtyCo. v. Shields, 6 Cir., 155 F. 54, 85 C.C.A. 122; Bacon on Benefit Societies and Life Insurance, 3d Ed., Vol II, p. 1225;Johnson v. Continental Casualty Co., 122 Mo. App. 369,99 S.W. 473, a case where traumatic pneumonia followed a fall;Kenny v. Bankers' Accid. Ins. Co., 136 Iowa 140,113 N.W. 566, 37 Law Ins. Jour. 59, a case where traumatic neuritis followed an injury; Re Etherington and Lancashire and YorkshireAccid. Ins. Co., [1909] 1 K.B. 591; Travelers' Ins. Co. v.Hunter, 30 Tex. Civ. App. 489, 70 S.W. 798, a case where insured was accidentally injured and died, the insurer claiming death was due to rheumatism, claiming that insured had a running sore on his arm, eczema, and a tendency to rheumatism, having previously suffered from it; Ludwig v. Preferred Accid. Ins.Co., 113 Minn. 510, 130 N.W. 5, a case where appendicitis developed from an injury; Fairclough v. Fidelity Cas. Co. ofN Y, 54 App. D.C. 286, 297 F. 681, a case where insured fell in a fit of vertigo, was injured and died. A directed verdict for defendant company was reversed. What then constitutes disease or bodily infirmity or bacterial infections within the meaning of exclusion or exception clauses in accident insurance policies? "Disease" by the terms of this policy is synonymous with "sickness." Logan v. Provident Sav. Life Assur. Soc. of N.Y.,57 W. Va. 384, 50 S.E. 529; Cady v. Fidelity Casualty Co.,134 Wis. 322, 113 N.W. 967, 17 L.R.A., N.S. 260; Wheeler v.Fidelity Casualty Co. of N.Y., supra; Collins v. CasualtyCo. of America, supra; Leland v. Order of United Com'lTravelers of America, supra; Fidelity Casualty Co. v.Meyer, supra; Thornton v. Travelers' Insur. Co., supra;Ludwig v. Preferred Accid. Ins. Co. of N.Y., supra; AmericanAccid. Co. v. Reigart, 92 Ky. 142, 17 S.W. 280, 21 L.R.A. 651.

We have again read the record through a number of times to see if there was any evidence that the insured was suffering from disease, bodily infirmity or bacterial infection, within the meaning of such terms, when used in exception clauses of accident insurance policies such as this, and we unhesitatingly say that there is no evidence to that effect. But this 10-12 question was for the trier of the facts and it found against the company. This being a law case, and the facts having been found in favor of the insured, we are not permitted to disturb such findings. There is ample evidence to support them. If the facts were to be determined by this court, we would not hesitate in finding them to the same effect as did the trial court. That such matters are questions of fact and the findings of the trial court are correct and binding are amply supported by the authorities. Kenny v. Bankers' Accid. Ins. Co. of DesMoines, supra; Martin v. Equitable Acc. Ass'n, 61 Hun 467, 16 N.Y.S. 279; Martin v. Manufacturers' Accid. Indem. Co., 60 Hun 535, 15 N.Y.S. 309; Morrow v. National Masonic Accid.Ass'n, 125 Iowa 633, 101 N.W. 468, supra; Travelers' Ins. Co. v. Melick, 8 Cir., 65 F. 178, 12 C.C.A. 544, 27 U.S. App. 547, 27 L.R.A. 629, 24 Ins. Law Rep. 430; Merrick v. Travelers'Ins. Co., Mo. App., 189 S.W. 392, 49 Ins. Law Jour. 103;Hanley v. Fidelity Cas. Co., 180 Iowa 805, 161 N.W. 114, 49 Ins. Law Jour. 350; Hatfield v. Iowa State Traveling Men'sAss'n, 180 Iowa 39, 161 N.W. 123, 49 Ins. Law Jour. 367;Hanley v. Travelers' Protective Ass'n, Iowa, 161 N.W. 125;Young v. Continental Casualty Co., 128 S.C. 168,122 S.E. 577.

We find no reason for changing from the views in the opinion heretofore rendered. The Petition for a Rehearing is denied.

HANSON and MOFFAT, JJ., concur.