Venable v. Ins. Co.

Full title: VENABLE, APPELLANT v. AETNA LIFE INS. CO., APPELLEE

Court: Supreme Court of Ohio

Date published: Mar 27, 1963

189 N.E.2d 138 (Ohio 1963)

189 N.E.2d 138

Opinion

No. 37595

Decided March 27, 1963.

Insurance — Life — Double indemnity for death by accident — Burden of proof — Proximate cause — Directed verdict for insurer not erroneous, when.

1. In an action for recovery under a clause of a life insurance policy providing for the payment of an increased amount if "the death * * * results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means * * * and if such death does not result * * * directly or indirectly from disease in any form," the burden rests upon the plaintiff throughout the trial to prove that the proximate cause of the death was bodily injuries effected solely through external, violent and accidental means and independently of all other causes.

2. In such case, the trial court does not err in directing a verdict for the defendant at the end of the plaintiff's case, where the evidence shows a causal relationship between the accident and the insured's death but fails to show that bodily injuries effected by accidental means were the proximate cause of the death.

CERTIFIED by the Court of Appeals for Lucas County.

Lydia Venable, appellant in this court, brought this action to recover $10,000 from the defendant insurance company, appellee in this court, under the double-indemnity provision of life insurance policy No. P657925 on the life of her deceased husband, Henry H. Venable, the insured. The defendant paid the plaintiff the $10,000 face value of the policy but denied liability for the additional $10,000 double-indemnity on the grounds: (1) That death was not directly and proximately caused by bodily injury, and (2) that death was caused principally, if not solely, by heart disease.

Life insurance policy No. P657925 was issued by defendant to the insured in 1930. Plaintiff is the named beneficiary. The insured paid an additional premium annually for the double-indemnity coverage.

The double-indemnity provision obligates the defendant to pay to the beneficiary "a sum equal to the sum described in this policy", or $10,000, "if the death of the insured occurs before default in payment of premium and before the first anniversary of the date of this policy which follows the age of 70 years, and such death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means within 90 days from the occurrence of such accident, and if such accident is evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning and internal injuries revealed by an autopsy) and if such death does not result from suicide, while sane or insane, nor from military or naval service in time of war, nor from an aeronautic flight or submarine descent, nor directly or indirectly from disease in any form * * *."

In the middle of the afternoon of July 7, 1957, the deceased while driving his automobile collided with an automobile in front of him. The plaintiff, who was a passenger, testified that the decedent's forehead struck the rearview mirror and his chest struck the steering wheel but he seemed not to be injured. He was fully conscious, conversed normally, showed no visible mark of injury and made no complaint of injury.

After the accident he got out of his automobile and walked ahead to talk with the people in the other car involved. He then returned to his car and drove it off the traveled portion of the road. Thereafter he walked to a gasoline station located 250 to 300 feet from the scene of the accident to call the police. While returning from the gasoline station, he suddenly put both hands against a telephone pole, his knees buckled, and he collapsed, falling backward. The insured was dead upon arrival at the hospital.

Henry H. Venable was 67 years of age at the time of his death. He had suffered a coronary occlusion in 1953 and had been suffering from extensive heart disease for at least five years preceding his death, particularly angina pectoris and ventricular excitability. The autopsy report disclosed severe atherosclerosis, left ventricle hypertrophy, fibrosis of the left ventricle, with reduction of the lumina to pinpoint, and probable healed rheumatic valvular disease.

Venable's attending heart specialist had cautioned him, during the years he had suffered from heart disease, against getting excited because such emotional upset would cause rapid and irregular heartbeats described as multifocal ventricular extrasystoles. The physician had tried to get the insured to relax and avoid emotional upset, but had not been completely successful. The attending heart specialist ordered an autopsy for the purpose of determining the cause of death.

The autopsy report contains the following entry:

"Probable Cause of Death: Coronary Insufficiency" The report refers to the finding of a small bruise 3 cc's in diameter on the inner surface of the scalp at the right frontal temporal region, which was barely visible on the outer surface. The report states that there was no evidence of trauma to the skull. It does describe the condition of the heart in great detail and states there were some pinpoint red spots on the pancreas, suggesting petechiae.

At the conclusion of the plaintiff's case and on motion of the defendant, the trial court directed a verdict in favor of the defendant for the reason that the plaintiff had failed to prove her case. The Court of Appeals, finding no error prejudicial to the plaintiff, affirmed the judgment of the trial court but, finding its (the Court of Appeals) judgment to be in conflict with the judgment of the Court of Appeals for Franklin County on the same question in United States Casualty Co. v. Thrush (1926), 21 Ohio App. 129, certified the record to this court. The cause is now before this court for review and final determination.

Messrs. Brady, Whitehead, Simons, Metzger Desmond, for appellant.

Messrs. Shumaker, Loop Kendrick, Mr. John W. Hackett, Jr., and Mr. Richard M. Colasurd, for appellee.

GIBSON, J.

In Ohio, if, upon a motion to direct a verdict, the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any essential issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, it should direct a verdict against him and not allow the jury to speculate upon the question. Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469; 52 Ohio Jurisprudence (2d), 618, Trial, Section 121, and cases cited therein. The test then of whether the directed verdict in the instant case was proper is whether reasonable minds could reasonably reach different conclusions on the evidence of record.

In applying the test, it first is necessary to ascertain the facts which must be proved by the plaintiff in order to establish her cause of action. This involves an examination and interpretation of the double-indemnity provision in policy No. P657925 on the life of the deceased, which reads in pertinent part as follows:

" If the death of the insured occurs before default in payment of premium and before the first anniversary of the date of this policy which follows the age of 70 years, and such death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means within 90 days of the occurrence of such accident, and if such accident is evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning and internal injuries revealed by an autopsy) and if such death does not result from suicide, while sane or insane, nor from military or naval service in time of war, nor from an aeronautic flight or submarine descent, not directly or indirectly from disease in any form * * *." (Emphasis supplied.)

It is evident from the language of the double-indemnity provision that the defendant is obligated to pay the additional sum only if certain conditions are shown to have preceded the death of the insured. In sequence of time there first must have been an accident within 90 days of the death in which the insured suffered bodily injuries solely through external, violent and accidental means. The accident must have been evidenced by a visible contusion or wound on the exterior of the body except in case of drowning where internal injuries were revealed by an autopsy. The next step is that the death must have resulted directly and independently of all other causes from the bodily injuries sustained in the accident. Finally, in the context in the circumstances of this case, the death must not have resulted directly or indirectly from disease in any form. These are the elements of the plaintiff's cause of action. Lack of anyone of these elements forecloses the right to recover.

In Carson v. Metropolitan Life Ins. Co. (1951), 156 Ohio St. 104, this court in a double-indemnity case, where the defendant's answer alleged suicide, approved of a charge reading as follows:

"`The court instructs the jury that the burden is upon the plaintiff to prove by a preponderance, or the greater weight of the evidence, that the death of the insured occurred as the result, directly and independently of all other causes, of accidental means, and that said death did not occur as the result of suicide or self-destruction, while sane or insane, and should you find that plaintiff has failed to sustain that burden by a preponderance of the evidence, then your verdict must be for the defendant company. The burden never shifts, and although the defendant alleges in its amended answer that the insured's death resulted from self-destruction there is no burden upon it to prove that fact; instead, the burden of proof remains with the plaintiff to establish by a preponderance of the evidence that death did not result from self-destruction.'" (Emphasis supplied.)

Except for the fact that in a suicide case the plaintiff has the benefit of a presumption against suicide, we see no reason why the burden of proof should be different in a disease case from that in a suicide case. We believe it is reasonable to require the plaintiff to show that she comes within the scope of the contract provision by proving, where relevant, that death was not caused, directly or indirectly, by disease. See Hull v. Metropolitan Life Ins. Co. (1941), 34 Ohio Law Abs., 236.

The remaining question is whether the plaintiff met her burden of proof by evidence that the insured's death was caused proximately by bodily injuries and not directly or indirectly from disease in any form. After hearing all of plaintiff's evidence, the trial court concluded that the plaintiff had not proved her case. The Court of Appeals reviewed the record and reached the same conclusion. We have listened to arguments of counsel and carefully reviewed the entire record and reach the same conclusion.

Although five medical witnesses testified for the plaintiff, in only two instances did the plaintiff's counsel or a witness ever refer to injury as a cause of death. At pages 154 and 155 of the record on direct examination, the pathologist testifying as an expert for the plaintiff, on the basis of the autopsy conducted and the report prepared by another physician, was asked:

"Q. Doctor, you testified a few moments ago that in your opinion the coronary insufficiency was caused by the accident. Now, do you really mean the accident, or the injury sustained in the accident?

"* * *

"A. I mean the accident."

At page 163 of the record, the family physician, who had last seen the insured approximately three weeks before his death and had not conducted the autopsy but was giving his interpretation of the autopsy report prepared by another physician, was asked:

"Q. Doctor, then you would say that the injury or the automobile accident was the primary cause of death on that date?

"* * *

"A. Yes."

The pathologist testifying for the plaintiff clearly testified that the coronary insufficiency which caused the death was caused by the accident and not the injury, and the family physician's single answer was not responsive to the double question asked.

All other medical testimony offered by the plaintiff went to the question of whether there was a causal relationship between the accident and death or the insured's heart disease and his death. On oral argument before this court, counsel for the plaintiff said he treated "accident" and "injury" as synonymous.

There is no denial that there was a causal relationship between the accident and the insured's death. This, however, is not the causal relationship required by the insurance contract. In fact, defendant contends, and the plaintiff's proof bears out the contention, that the insured experienced emotional upset, nervousness and excitement upon the happening of the automobile accident; that with such emotional change his heartbeats became more rapid and irregular, all of which would be expected in view of the pre-existing ventricular excitability and other heart disease; and that this change in the heart rhythm progressed to the point of the pre-existing ventricular extrasystoles, ventricular fibrillation, heart stoppage and death.

On the basis of a review of the entire record, we are of the opinion that the Court of Appeals was not in error in concluding that, after construing the evidence most strongly in favor of the plaintiff, reasonable minds could come to but one conclusion and that conclusion is adverse to the plaintiff. Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL and GRIFFITH, JJ., concur.

HERBERT, J., dissents.