Campbell v. Ætna Life Ins. Co.

• Decision Date: 04 June 1920
• Docket Number: No. 21119.,21119.
• Citation: 283 Mo. 63,222 S.W. 778
• Court: Missouri Supreme Court
• Parties: CAMPBELL v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

222 S.W. 778

283 Mo. 63

CAMPBELL v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

No. 21119.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Anna Campbell against the Ætna Life Insurance Company of Hartford, Connecticut, a corporation. From a judgment for defendant, plaintiff appeals. Affirmed.

Bryan, Williams & Cave, of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

WHITE, C.

This suit is brought to collect insurance on the life of plaintiff's deceased husband, Joseph C. Campbell. The petition filed in the circuit court of the city of St. Louis is in two counts, each based upon an accident policy which contains the usual stipulation in accident policies, as follows:

"Against loss, as herein defined, resulting directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental means, suicide (sane or insane) not included."

The answer in each count contains a general denial, and for a further defense alleges that Joseph C. Campbell was, at the time of the issuance and execution of each of the policies mentioned in the petition, a citizen of the state of California, and continued so at all times until his death; and that each of the policies mentioned in the petition became operative and in force in California and every premium was paid in California; that there was in force in the state of California the following statute (Pol. Code, § 4468):

"Common Law, When Rule of Decision. — The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this state, is the rule of decision in all the courts of this state."

The answer then proceeds:

"And that at the time of the death of the said Joseph C. Campbell he was afflicted with cirrhosis of the liver, cancer of the liver, and a cancerous tumor of the liver; that the immediate cause of his death was hemorrhage resulting from a rupture of said cancerous tumor; that if the insured suffered any accidental occurrence which contributed to cause said rupture (which the defendant denies), nevertheless said cirrhosis, cancer, and cancerous tumor also directly contributed thereto."

The allegation follows that under the law of California the manner of the insured's death was not accidental, within the meaning of the policies.

Campbell died at San Francisco, July 1, 1915, at the age of 63 years. He was a lawyer with a large practice. On June 4th, preceding his death, his son Robert Campbell arrived from Chicago on a visit to San Francisco. Saturday, June 5th, Joseph Campbell and his son played golf in the forenoon. The insured played hard; he was a strenuous player and strenuous in everything he undertook ; he strained hard in making his strokes, was awkward about it — an inexperienced player. On Sunday forenoon, June 6th, Campbell and his son again played golf, 18 holes. After they had played to about the middle of the second 9, Campbell's ball lodged in a bunker toward the top. He took his mashie and stepped up to the side of the bunker to make a stroke and was thrown off his balance IV catching his foot in something so that he almost fell, but by a violent effort recovered his balance and continued the game. After the game he took the usual shower and went home with his son, without making any complaint. The next morning, Monday, June 7th, he went to his office as usual, still making no complaint. The son returned Monday afternoon and found his father at home lying on a settee. A doctor was called. Campbell complained of distention of the stomach; for three or four days he was in bed and lounged around the house. On Wednesday, June 9th, his abdomen became very much distended; his physician introduced a cannula in the lower part of his abdomen and drew off 8 quarts of fluid, 15 per cent. blood. This operation was repeated three or four times, until about 40 quarts of fluid were drawn off. Campbell continued to grow weaker from day to day, and finally died July 1st. An autopsy showed that his aorta and arterial circulatory system was diseased, but not seriously; his pancreas was shrunken and atrophied; the spleen considerably enlarged, twice its normal size; his liver was contracted to one-half or three-fourths its normal size; there was cirrhosis of the liver, and on the right lobe was a tumor about four inches in its greatest diameter; it is described as a primary carcinoma, cancer of the liver, a malignant tumor. This tumor showed necrosis; on it was a nodule projecting sufficiently to cause friction against the adjacent parts of the body in case of movement; a piece of this projecting nodule was broken off, and that rupture, in the opinion of the physicians, caused insured to bleed to death. No other disturbance or condition of the internal organs was apparent to account for the hemorrhages.

The defendant introduced in evidence two California decisions: Rock v. Travelers' Insurance Co., 172 Cal. 462-468, 156 Pac. 1029, L. R. A. 1916E, 1196; Price v. Insurance Co., 169 Cal. 800-803, 147 Pac. 1175. The plaintiff in rebuttal offered a number of California decisions. Upon this evidence the court instructed the jury that under the law of the state of California, as applied to the case, plaintiff was not entitled to recover, and directed a verdict for the defendant. The verdict was accordingly returned and judgment rendered for the defendant, from which the plaintiff appealed to this court.

[1] I. The policies having been issued and delivered in the state of California, of which state the insured was a resident at all times, the law of California must be applied in the construction of the contracts.

Three principal propositions are formulated by the respondent, claiming either to be sufficient to defeat recovery: First, that there is no sufficient proof that the rupture and consequent hemorrhage which caused death was the result of the strain in the golf game when the deceased attempted to get his ball off the bunker. Second, the rupture, if caused by the exertion at that time, was not through "accidental means;" and, under the law of California as shown by the decisions introduced in evidence, the exertion which produced the rupture, if it was so produced, was an intended act and not an accidental one within the meaning of the policy. Third, under the law of California there is no liability on the part of the insured against accidents where pre-existing disease contributes to or co-operates with an accidental injury to produce the injury. In this case a cancer of the liver was a pre-existing disease and a contributing cause; therefore the death was not "effected solely" through the accident.

[2] Under the law of California there is no doubt that the burden was on the plaintiff to prove the death was caused by: (a) The incident in the bunker; (b) that the movement, effort, or strain of the deceased which caused the rupture was not intentional but accidental; and (c) that this accidental injury resulted in death "directly and independently of all other causes," as that phrase is understood and construed by the California court. If the plaintiff has failed to establish either one of the above propositions the demurrer to the evidence was properly sustained. Without determining, we may gay it seems that the first two were sufficiently established; that there was sufficient evidence to go to the jury tending to show the rupture and hemorrhage were caused by the strain on the golf links, and that the exertion of the deceased to recover his balance was accidental and not an intentional movement.

[3, 4] II. It remains, then, to inquire whether the death was produced by that accident "independently of all other causes." That the rupture was the immediate cause of the insured's death there is no doubt, and that the rupture would not have occurred but for the existence of the cancerous tumor is equally certain.

Under the Missouri decisions, if the rulings in Missouri should be applied, there is no doubt but the evidence was sufficient to submit that issue to the jury. Fetter v. Fidelity & Casualty Co., 174 Mo. 256, loc. cit. 267. 73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560; Belle v. Protective Association of America, 155 Mo. App. 629, loc. cit. 646, 135 S. W. 497; Young v. Railway Mail Ass'n, 126 Mo. App. 325, 103 S. W. 557.

It was said in the Belle Case:

"The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction as the sole producing cause."

Accident insurance, so far as the record in this case shows, is issued without regard or inquiry as to the physical condition of the insured, whether it is one which makes him more susceptible to a certain class of accidents than ordinary or not. An accident policy is issued to a one-legged man the same as to one who has two legs, although he may be likely to receive injury from some kinds of accidents which a two-legged man would not so easily incur. It is not shown that knowledge by the insurer of the existence of a cancerous liver would have prevented the issuance of the policies, although that condition necessarily made insured more susceptible to certain kinds of accidental injury ; for instance, the injury which he actually received. The accident which thereafter produced his death is exactly what the contract insures against, whatever the condition of the insured may have...