Boring v. Haynes

• Decision Date: 06 May 1972
• Docket Number: No. 46370,46370
• Citation: 496 P.2d 1385,209 Kan. 413
• Parties: Dorothy V. BORING, Individually, and Dorothy V. Boring, Parent and Natural Guardian of Geraid H. Boring, a Minor, Appellants, v. Stuart Alfred Douglas HAYNES, As the Representative Underwriter For Lloyd's of London, Appellee.
• Court: Kansas Supreme Court

Page 1385

496 P.2d 1385

209 Kan. 413

Dorothy V. BORING, Individually, and Dorothy V. Boring Parent and Natural Guardian of Geraid H. Boring, a Minor, Appellants, v. Stuart Alfred Douglas HAYNES, As the Representative Underwriter For Lloyd's of London, Appellee.

No. 46370.

Supreme Court of Kansas.

May 6, 1972.

Syllabus by the Court

1. Generally, under K.S.A. 60-256(c), before a summary judgment may be granted the record before the trial court must show conclusively that there remains no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law.

2. Where an accidental injury activates or aggravates a dormant disease or physical infirmity, the accident may be said to have been the proximate cause of the resulting disability or death within the usual provisions and ordinary meaning of a policy insuring against accident.

3. In the event an insured sustains physical disability or death resulting from an accidental injury which aggravates or causes a dormant disease or ailment to become active, the disability or death will be regarded as having been caused solely by the injury, so as to render an insurer liable therefor under an accident policy, even though such disability or death might later have resulted regardless of the accident, and even though the accident might not have affected a normal person to the same extent.

4. A dormant disease is one which is quiescent, passive, resting or static as opposed to one which is active, lively, or effective.

5. The term 'acciden' means an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often, but not necessarily, accompanied by a manifestation of force.

6. In order to constitute accidental bodily injury it is not essential that the disorder be of such character as to present external or visible signs of its existence.

7. Where emotional stress and strain arising from an automobile accident are superimposed upon preexisting diseased coronary arteries and heart so as to cause death, the disease being in a dormant condition, recovery may be had under the usual provisions of a policy insuring against accidental bodily injury and death.

Terry O'Keefe, Wichita, argued the cause, and Dale Kidwell and Walter C. Williamson, Wichita, were with him on the brief for appellants.

Byron Brainerd, Wichita, argued the cause and was on the brief for appellee.

HARMAN, Commissioner.

This is an action by the beneficiaries under a group policy of accident insurance for recovery of death benefits. Plaintiffs contend the insured's death was occasioned by accidental bodily injury; defendant insurer denies this assertion and says it was caused directly or indirectly, wholly or partly by disease.

The trial court sustained defendant's motion for summary judgment and plaintiffs have appealed.

Pertinent portions of the certificate of insurance are:

'Underwriters . . . agree . . . if . . . the Assured shall sustain accidental bodily injury which shall . . . occasion his death . . . Underwriters will pay . . .'

'EXCLUSIONS. This Certificate does not cover bodily injury . . . (b) caused directly or indirectly, wholly or partly . . . by disease.'

The trial court had before it the deposition of Dr. C. G. Leitch, taken by defendant-appellee, together with certain exhibits referred to in the deposition, plus the death certificate of the decedent. Plaintiffs had previously indicated by way of answer to defendant's interrogatory that they would rely on Dr. Leitch's deposition and the exhibits to establish their claim. From these documents the following may be gleaned:

On April 25, 1966, H. O. Boring, who was employed by Kansas Gas and Electric Company as a supervisor, obtained through his employer the policy in question in the principal sum of $25,000. His medical record begins in the year 1955 with treatment by his family doctor for stomach and other minor problems. On March 9, 1967, he was admitted to the Wesley Medical Center, Wichita, for x-rays of his gall bladder, which was found to be diseased. During this period of his medical history Mr. Boring's electrocardiograms were essentially normal. He was dismissed from the hospital March 14, 1967. That same evening he had his first myocardial infarction and he was readmitted to the hospital. He had a relatively uneventful recovery phase from his infarction and was discharged from the hospital April 4, 1967, on cumidin. His heart consultant saw him on office visits during April. Boring was suffering attacks of cholecystitis and was having occasional episodes of tightness in his chest with exercise but on follow-up examinations in April he continued to check out well with no signs of heart failure or further infarction. In late April nitroglycerin and probanthine were prescribed. He was hospitalized again from May 12 to May 16, 1967, for gall bladder attacks. He reentered Wesley hospital June 17, 1967, for gall bladder removal, which operation was performed without difficulty and he was discharged June 20, 1967.

Although he did not return to work Mr. Boring was active around the house; he rebuilt the water pump in his back yeard, poured a three foot square concrete slab, claimbed up on the roof and fixed the antenna. He was seen July 5, 1967, by his heart consultant who found he had no gastrointestinal or cardiac symptoms and was doing well. July 6, 1967, his family doctor advised him he could plan to return to work July 24 if his heart consultant released him.

On July 17, 1967, Mr. Boring was driving an automobile belonging to his employer on a Wichita street. While at an intersection his automobile was struck in the rear by another vehicle. He got out of his automobile and talked to some of the people involved in the accident. When he saw that apparently no one was badly hurt he returned to look at the damage to his car and suddenly collapsed to the ground. He was taken to nearby Wesley hospital where he was pronounced dead upon arrival. The autospy report contained the following:

'Final Anatomic Diagnosis Primary

'Arteriosclerotic heart disease.

'Coronary thrombosis, right coronary artery, old.

'Old myocardial infarction, posterior wall left ventricle.

'Congestion of viscrea.'

The death certificate indicated the immediate cause of death to be myocardial infarction due to coronary arteriosclerosis. Mr. Boring was fifty-four years of age at the time of his death.

In his deposition Dr. Leitch, who was engaged extensively in the practice of industrial medicine but who had not examined Mr. Boring, testified hypothetically as to Boring's condition and the case of death. The following appears in his direct examination by appellee:

Q. Well, Doctor, do you have an opinion as to whether or not the death of Mr. Herschel O. Boring on July 17th was caused by, and I quote, 'Accidental bodily injur'?

'A. Yes, I do.

'Q. Well, in formulating such an opinion as to whether or not his death was caused by, 'Accidental bodily injury', what meaning or definition did you attach to the phrase, 'Accidental bodily injury'?

A. Well, I attached to it what we recognize in pathology and in medicine as circumstances which in themselves may produce either organic or functional abnormalities of the body capable of producing an individual's death either directly or by influencing other already existing conditions.

Q. Well, then, the meaning of the definition of the phrase as you have just given me, what bodily injury did Mr. Boring sustain which caused his death on July 17, 1967?

'A. Well, I think that Mr. Boring sustained, as a result of the episode in which he was involved, a stress situation which caused his body to react under the influence of pressors arising out of the experience which resulted in his attempt to develop an increased coronary artery volume flow from his heart, which was already diseased, and that, as a result of that, he developed a functional situation which we recognize as acute coronary insufficiency complicated by cardiac arrest.

Q. Well, Doctor, you do recognize that nowhere in this material which you have handed me is there any references to or any finding of, any bruises, abrasions, contusions, cuts, fractures, or any physical injury, don't you?

'A. No, I think it is equivocated a little bit in the pathology report, but nothing definite is identified as being evident in the form of external bodily trauma.

Q. You did accept as true didn't you, Dr. Eckert's statement from the autopsy report which has been marked Defendant's Deposition Exhibit F, 'The body is that of an elderly white male, which is fully clothed, and shows no evidence of any injury or damage to the clothing or the body. There are no marks of trauma or any evidence of injury.' You do accept that as true, don't you?

'A. Yes, sir.

* * *

* * *

'Q. And you also accept as true the fact that there was no evidence in the examinaion of any other part of the body as to any physical injury, trauma, contusion, bruise, abrasions, or anything else, don't you, Doctor?

'A. Yes, except they had a dead body.

'Q. Now, Doctor, what is your opinion as to whether or not Mr. Boring's death on July 17, 1967, was caused by accidental bodily injury?

'MR. O' KEEFE: I object to this as repetitious. He has already answered it.

'A. My opinion is that Mr. Boring's death occurring on July 17, 1967, arose as a result of bodily injury arising out of a circumstance which produced aggravation of an already existing arteriosclerotic heart disease with cardiac insufficiency and cardiac arrest.

'Q. (By Mr. Brainerd) If you would, Doctor, enumerate the medical findings upon which you base that opinion?

'A. Well, I base it upon the basis of the fact that I have a post mortem report in the case of an individual who is obviously dead, who has post mortem evidence of existing arterial disease, existing coronary artery disease, existing myocardial pathology arising out of limiting coronary sclerosis,...