Adkins v. American Cas. Co. of Reading, Pa.

• Decision Date: 07 June 1960
• Docket Number: No. 11090,11090
• Citation: 114 S.E.2d 556,145 W.Va. 281
• Court: West Virginia Supreme Court
• Parties: , 84 A.L.R.2d 169 Aaron ADKINS v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a Corporation.

Page 556

114 S.E.2d 556

145 W.Va. 281, 84 A.L.R.2d 169

Aaron ADKINS v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a Corporation.

No. 11090.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1960.

Decided June 7, 1960.

Syllabus by the Court

The insured in an accident policy providing for payment of benefits for loss 'resulting from accidental bodily injury', limiting the meaning of the word 'injury' to the 'sole cause of the loss', and providing that benefits would be payable only in the event the 'accident wholly and continuously' disabled the insured, is not entitled to recover benefits for total disability on a showing that an accident merely activated a pre-existing diseased condition, which resulted in the disability.

D. Grove Moler, Mullens, for plaintiff in error.

Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, for defendant in error.

GIVEN, Judge.

This action was prosecuted in the Circuit Court of Wyoming County, by Aaron Adkins against the American Casualty Company of Reading, Pennsylvania, for recovery of monthly disability benefits alleged to have accrued as a result of an accident suffered by plaintiff. On a verdict of a jury the trial court entered judgment for plaintiff in the amount of twenty two hundred twenty dollars, which includes two hundred twenty dollars interest.

The application on which the policy was issued was made through an insurance agency at Mullens, West Virginia, dated June 10, 1957, and the policy was made effective as of that date. Question No. 11 of the application reads: 'Have you ever received indemnity for injury or sickness? (Give Name of Company. Amount Paid. Nature of Claim).' The answer was 'Yes. American Casualty Co. 1955. Sickness'. The answer, insofar as made, was correct, but the evidence clearly disclosed that the insured had received, or was receiving, disability benefits accrued under an accident indemnity policy issued to the insured by Provident Life and Accident Insurance Company of Chattanooga, Tennessee. An application made by the insured, relating to a claim for benefits under the last mentioned policy, dated June 11, 1957, was based on an 'injury' which occurred May 21, 1957. The insured described the injury in this language: 'I went backward on a studio couch and hurt my back in between my shoulders and pain going down my right arm'. There is evidence to the effect that such 'injury' could have activated the pre-existing degenerative disc disease mentioned in connection with the accident for which benefits are claimed in the instant action. The insured had previously, before the first injury, received disability benefits under the prior policy for 'sickness'.

Question 12 of the application on which the policy here involved was issued reads: 'To the best of your knowledge and belief, is your health, sight or hearing impaired in any way or are you maimed or deformed? If so, give details'. The answer inserted by the insurance company agent was 'Yes'. Later, by a representative of the insurance company, the 'Yes' was stricken, and the answer 'No' inserted. The copy attached to the policy delivered to the insured shows the answer 'Yes' stricken, and the answer 'No' inserted. Though the policy was delivered to and remained in possession of the insured, and though he was advised, in an accompanying letter, to notify the company if the policy was found not to be 'in order' he testified to the effect that he did not read the copy of the application. The agent testified to the effect that the insured, after the reading to him of question 12, asked the insurance agent, 'What do you mean'?; that the agent then answered the inquiry by stating that the question meant, 'Are you in good health?', and that the insured answered 'Yes'. Defendant contends that other questions material to the issuance of the policy contained in the application were answered falsely, and that evidence concerning their falsity should have been permitted to go to the jury, though not mentioned in any specification of defense, for, at least, the purpose of establishing fraud in the procurement of the policy.

Question 17 of the application for the policy sued on reads: 'Do you agree that the falsity of any answer in this application for a policy may bar the right of recovery thereunder if such answer is made with intent to deceive and materially affects either the acceptance of the risk or the hazard assumed by the Company?' The answer was 'Yes'.

The policy, as to accident benefits, insured only against loss 'resulting from accidental bodily injury', and contains this provision: "Injury' as used in this Policy means accidental bodily injury which is the sole cause of the loss and is sustained while this Policy is in force'; and accident benefits accruing under the policy were to be paid only 'If injury shall within thirty days after the date of the accident wholly and continuously disable and prevent the Insured from performing any and every duty pertaining to his occupation'.

The insured contends that the disability sued for resulted from an accident which occurred on July 8, 1957, the result of an attempt by him to enter an automobile. He described the accident in this manner: 'I went to step over that mud hole and my foot slipped, it was on the gross. I jumped to keep from getting in the mud hole and my foot slipped and the top of my head hit the frame of the car over the door and drove my neck backwards and the pain went to radiating down my neck and arms'. On the following day insured was examined by his family physician, who directed him to a hospital for x-ray and other examinations. Such examinations revealed that the insured was suffering from a pre-existing condition diagnosed as 'a pre-existing degenerative disc disability causing narrowing of the disc'. The conditions found did not occur 'within two days before the x-rays were taken', but 'are results of a considerable period of time'. The insurance company does not deny the happening of the accident, or the existence of the disability, but says that the disability existed because of a pre-existing condition, not because of the accident.

There appears to be no contention that the striking of his head by the insured against the automobile, standing alone, resulted in the total disability to insured. The striking of the head, standing alone, caused no total disability, except, perhaps, for a few minutes. The contention of plaintiff is that the 'blow on plaintiff's head occurring on July 8, 1957, was the precipitating cause of plaintiff's' disability. From the evidence it is certain that the disability could not have resulted except for the pre-existing diseased condition. There is evidence, however, that the striking of the head resulted in causing the pre-existing condition, theretofore dormant, to become active, resulting in the disability.

The trial court, on motion of plaintiff, over objections of defendant, instructed the jury 'that if you believe from the evidence that the admitted disablement of the plaintiff, Aaron V. Adkins, from engaging in his usual occupation, due to pain and stiffness

in his neck and with accompanying pain running down into his arm or arms, directly or proximately resulted from an accidental blow on his head which occurred on July 8, 1957, then you should make a verdict for the plaintiff in the sum of $2,000; if you do not so believe and find from the evidence, you should make a verdict for the defendant'. The defendant offered its Instruction No. 4, which the court refused to read to the jury, which is in this language: 'The Court instructs the jury that plaintiff seeks payment for being disabled from performing his...