Opinion
No. 41606.
April 10, 1950.
An insurance company was liable for double indemnity for accidental death when an accidental fall activated a dormant case of tuberculosis. Damages and attorneys' fees for vexatious refusal to pay should not have been awarded.
1. INSURANCE: Double Indemnity for Accidental Death: Tuberculosis Activated by Accidental Fall: Liability Under Policy. Defendant insurance company was liable under an insurance policy clause providing double indemnity for accidental death when the insured sustained a fall resulting in pneumonia which activated a dormant case of tuberculosis, from which the insured died.
2. INSURANCE: Refusal to Pay Not Vexatious. Defendant insurance company was not liable for attorneys' fees and damages for vexatious refusal to pay.
Appeal from Carroll Circuit Court; Hon. James S. Rooney, Judge.
REVERSED AND REMANDED ( with directions).
Richard S. Righter and Howard A. Crawford for appellant; Ferdinand H. Pease and Lathrop, Crane, Sawyer, Woodson Righter of counsel.
(1) The trial court erred in overruling defendant's motion for a directed verdict at the close of all the evidence and erred in overruling defendant's motion to set aside the verdict and to enter judgment for defendant for the reason that the undisputed evidence shows the insured's death resulted not solely from accidental means but from infirmity of body, illness and disease, a bacterial infection within the meaning of the policy. Propst v. Capital Mutual Assn., 233 Mo. App. 612, 124 S.W.2d 515; Christianson v. Metropolitan Life Ins. Co., 102 S.W.2d 682; Roberts v. Woodmen Accident Co., 233 Mo. App. 1058, 129 S.W.2d 1053; Freeman v. Mercantile Mut. Accident Assn., 156 Mass. 351, 30 N.E. 1013; Fetter v. Fidelity Cas. Co., 174 Mo. 256, 73 S.W. 592; Rieger v. Mutual Life Ins. Co. of New York, 234 Mo. App. 93, 110 S.W.2d 878. (2) The trial court erred in submitting to the jury the issue of vexatious refusal to pay. New York Life Ins. Co. v. Calhoun, 114 F.2d 526; Rieger v. Mutual Life Ins. Co. of N.Y. 234 Mo. App. 93, 110 S.W.2d 878; Callahan v. Connecticut General Life Ins. Co., 357 Mo. 187, 207 S.W.2d 279; Non-Royalty Shoe Co. v. Phoenix Assur. Co., Ltd., of London, England, 277 Mo. 399, 210 S.W. 37; Floyd v. Life Casualty Ins. Co., 148 S.W.2d 620; Volz v. Travelers Ins. Co., 161 S.W.2d 985; Sanderson v. New York Life Ins. Co., 194 S.W.2d 221; Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277; Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360; Sec. 6040, R.S. 1939.
W.A. Franken and John Franken for respondent.
(1) Upon the demurrer to the evidence, all of the plaintiff's evidence is taken as true and the plaintiff is entitled to every inference which may be reasonably drawn therefrom. Adams v. Thompson, 178 S.W.2d 779. (2) The rule in Missouri is that where the accidental injury activates or renders active a dormant disease or infirmity which results in the death of the insured, such accidental injury is regarded as the sole cause of his death and renders the insurance company liable under the double indemnity provision of the policy like the one sued on, regardless of any such physical infirmity or disease which insured might have had at the time of the accident, provided that the insured would not have died at the time he did die, except for such accidental injuries. Fetter v. Fidelity Casualty Co., 174 Mo. 276; Rieger v. Mutual Life Ins. Co. of New York, 110 S.W.2d 878; Grug v. Mutual Life Ins. Co. of New York, 149 S.W.2d 393; Landman v. John Hancock Mutual Life Ins. Co., 211 S.W.2d 530; Beimdick v. New York Life Ins. Co., 183 S.W.2d 379; Roberts v. Woodmen Acc. Co., 129 S.W.2d 1053; Elbe v. John Hancock Mutual Life Ins. Co., 155 S.W.2d 302. (3) The sole question involved in this case was a question of fact and the question of vexatious delay was for the determination of the jury as a fact in the case. No contested question of law was involved. Albert v. Metropolitan Life Ins. Co., 95 S.W.2d 343; Evans v. Great Northern Life Ins. Co., 167 S.W.2d 118; Tevlin v. Federal Life Ins. Co., 127 S.W.2d 743; Rose v. New York Life Ins. Co., 168 S.W.2d 449; Glosch v. Central Life Ins. Co. of Illinois, 176 S.W.2d 46; Hampe v. Metropolitan Life Ins. Co., 21 S.W.2d 926; Landman v. John Hancock Mutual Life Ins. Co., 211 S.W.2d 530; Frangos v. Hartford Acc. Indemnity Co., 203 S.W.2d 894; Childers v. National Life Acc. Ins. Co., 37 S.W.2d 490.
This case was transferred to this court by the Kansas City Court of Appeals under authority of Section 10, Article V, of the Missouri Constitution. Appellant insurance company filed a motion to transfer and the principal grounds in its motion were that the cause involved a question of general interest and that a [671] re-examination of the existing law is required.
The case was disposed of in the court of appeals in an opinion written by Cave, P.J., in which all of the judges concurred. It is reported in 221 S.W.2d 843. The opinion contains a complete statement of the facts and a full discussion of the legal points involved. We need to make only a brief statement.
The suit was brought by Pauline P. Young, the widow of Roscoe D. Young, against the defendant insurance company to recover $1,000 under a double indemnity clause in an insurance policy wherein plaintiff was named as beneficiary. On May 23, 1946, the insured, plaintiff's husband, was washing windows at his house in Carrollton, Missouri. While so engaged, a ladder on which he was standing slipped and Young fell thereby sustaining a number of broken ribs and other injuries. Traumatic pneumonia developed and thereafter tuberculosis, resulting in death on August 16, 1946, which was within 90 days from the date of the fall.
A trial resulted in a verdict for plaintiff for $1,000 as provided for in the double indemnity clause of the policy; $500 for attorneys' fees; $100 penalty for vexatious refusal to pay; and $78 for interest. The court of appeals disallowed the items of attorneys' fees and penalty for vexatious refusal to pay and ordered a new judgment to be entered in plaintiff's favor for $1,000, the amount specified in the insurance policy.
The evidence disclosed that for many years the insured had been employed as a diesel engineer by the Sinclair Refining Company. He had worked steadily prior to the fall on May 23, and apparently was in good health. He never returned to work after the fall, in fact, he did not thereafter enjoy good health a single day. Pneumonia continued for about nineteen days. Young continued to be a sick man. He coughed, had a pain in his side, and had some fever. He was sent to the Veterans' Hospital in Excelsior Springs, Missouri, where he died. The death certificate stated the cause of death to be tuberculosis. The defendant company paid the widow the face of the policy but refused to pay under the double indemnity clause, contending that death was not the result of the fall but was due to a pre-existing tuberculosis condition.
There was conflict in the evidence as to whether the insured prior to the fall was suffering from an active case of tuberculosis. All that need be said here is that a jury was justified in finding that Young had an inactive or arrested case of tuberculosis prior to the fall on May 23. The fact that he had been working constantly prior to the fall and thereafter was never able to return to work was a circumstance supporting the medical evidence on that question of fact. The opinion of the court of appeals contains a full statement of the facts to which we refer the reader for additional details.
The ultimate facts as supported by evidence in the record stated most favorably to plaintiff are that Young at the time of the fall had an inactive case of tuberculosis. The injuries sustained by the fall caused traumatic pneumonia which activated the dormant tubercular condition and caused the death of the insured. Considering the above facts to be true, the question presented is whether the defendant company is liable under the following clause in the insurance policy. (We are omitting immaterial provisions.)
"The Double Indemnity Benefit specified on the first page hereof shall be payable upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * *; provided, however, that such Double Indemnity shall not be payable if the Insured's death resulted, directly or indirectly, from * * *; (g) infirmity of mind or body; (h) illness or disease; or, (i) any bacterial infection other than that occurring in consequence of accidental and external bodily injury."
The court of appeals held that the facts justified the submission of the case to a jury. The case of Fetter v. Fidelity Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459, 97 Am. St. Rep. 560, was [672] cited as authority. In its brief appellant says of the Fetter case, "The principle is correct but it does not apply because here there was another `independent force.' That independent force was tuberculosis. It was not only an independent force, it was a pre-existing force."
In the Fetter case the insured fell and ruptured a kidney. The rupture was made possible because of a cancerous condition of the kidney. It was held that the insured company was liable under a clause similar to the double indemnity clause involved in the present case. Appellant says the facts in the Fetter case were different from the facts now before us. The facts may have been somewhat different but the same principle of law is applicable. In the Fetter case the insured was suffering from a cancerous condition which made it possible for the kidney to rupture as a result of a fall. Death followed. So, in this case the insured had a dormant or inactive case of tuberculosis which was caused to become active as a result of a fall. Death followed. In the Fetter case the insured might have eventually come to his death as a result of cancer. In this case the insured might have eventually died of tuberculosis. But he might not have died of such disease if it had not been for the fall. The fall activated a dormant condition resulting in death. We think the Fetter case controlling. For cases from other states supporting this theory see Police and Firemen's Ins. Assoc. v. Blunk, (Ind. App.) 20 N.E.2d 660; Scanlan v. Metropolitan Life Ins. Co., 93 F.2d 942; Provident Life and Accident Ins. Co. v. Watkins, 256 Ky. 645, 76 S.W.2d 889; Guardian Life Ins. Co. v. Robinson, 278 Ky. 678, 129 S.W.2d 192; Commercial Casualty Ins. Co. v. Stinson, 111 F.2d 63; Kramer v. New York Life Ins. Co., 293 Mass. 440, 200 N.E. 390; Fidelity and Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A. (NS) 493; Griffin v. Prudential Ins. Co., 133 P.2d (Utah) 333, 144 A.L.R. 1402, and extensive annotations beginning at page 1416. See also cases cited in the annotations in 131 A.L.R. 244. Cases that support defendant's contention will be found in the annotations in 131 A.L.R. beginning at page 251.
We are of the opinion that the better rule followed in this and many other jurisdictions was stated in Scanlan v. Metropolitan Life Ins. Co., supra, as follows: ( 93 F.2d 946)
"One may recover on an accident policy such as here in issue although the insured suffers from bodily infirmities. If the accident brought about conditions from which death resulted, the fact that the insured was ill, aged or infirm, or had bodily or mental infirmities, would not bar recovery provided the accident excited the bodily infirmity into activity and death resulted. If the infirmity alone would not have caused death, it cannot be said to have caused death when the immediate result was occasioned by an infirmity which became active only because of the accident. The infirmity may have made the insured less able to resist, but if the accident caused the condition which in turn affected the weak spot which did not resist as well as a healthy body, the cause is nevertheless the accident, and recovery cannot be avoided or evaded."
After an examination of the authorities from many other jurisdictions, those cited supra and others, we have decided to adhere to the rule heretofore followed as outlined in the opinion in this case by the court of appeals.
We need not reconsider the question of the allowances of attorneys' fees and damages for vexatious refusal to pay. We approve the holding of the court of appeals in disallowing these two items. There was present in this case a question of fact upon which there could be an honest difference of opinion, that is, whether the proximate cause of death was disease or accident.
The judgment of the trial court should, therefore, be reversed and the cause remanded with directions to the court to enter a judgment in plaintiff's favor in the sum of $1,000 with interest at 6% per annum from August 16, 1946.
It is so ordered. [673] Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.