Browning v. Equitable Life Assur. Soc. of United States

• Citation: 94 Utah 570,80 P.2d 348
• Decision Date: 13 June 1938
• Docket Number: 5822
• Court: Utah Supreme Court
• Parties: BROWNING v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES

80 P.2d 348

94 Utah 570

BROWNING v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES

No. 5822

Supreme Court of Utah

June 13, 1938

Appeal from District Court, Salt Lake County, Third District; P. C Evans, Judge.

For former opinion, see 94 Utah 532, 72 P.2d 1060.

Petition denied.

Hurd &amp Hurd, of Salt Lake City, for appellant.

Critchlow & Critchlow and Bagley, Judd, Ray & Nebeker, all of Salt Lake City, as amici curiae.

Harley W. Gustin and Edward F. Richards, both of Salt Lake City, for respondent.

LARSON Justice. HANSON and MOFFAT, JJ., concur. WOLFE, Justice, FOLLAND, Chief Justice, dissenting.

OPINION

On petition for rehearing.

LARSON Justice.

Defendant by petition for a rehearing assails the opinion of the court, 94 Utah 532, 72 P.2d 1060, asserting that the court overlooked entirely the provisions of Subdivision "C" of "Additional Provisions" of the policy of insurance, and which defendant now contends are controlling, although in the briefs on original hearing they were scarcely mentioned; and also seeks a re-examination of the legal questions which it admits were discussed and considered at length in the opinion rendered. As to the matters specifically and topically discussed in the former opinion, we deem it unnecessary to enter into any discussions thereof. Counsel have advanced no new arguments nor furnished any authorities we did not fully consider when the original opinion was written. We shall, however, discuss briefly the effects of Subdivision "C" of "Additional Provisions" of the policy, and cite a few additional reasons why the position of the court on all matters was well taken. In writing the original opinion, we fully considered the language and effect of the clause which appellant now thinks we entirely overlooked. We discussed the content and effect thereof but did not quote the language of Subdivision "C". That there may be no misunderstanding of its effect, we now quote some parts of the policy and briefly discuss them. The insurance clause reads:

"The Equitable Life Assurance Society of the United States hereby insures the person named as applicant * * * subject to the provisions, conditions and limitations herein contained, against loss resulting directly and independently of all other causes, from bodily injuries effected during the term of this policy solely through external, violent and accidental means, and against disability from disease contracted during the term of this policy, as follows:"

Then follow in eight parts the specifications of the indemnities to be paid according to the nature and extent of the injury or disability. They constitute the insuring provisions of the policy. The nature, extent and amount of the insurance provided are therein set forth, and the limits of the field covered are specified. When an insured claims a right to recover under the accident provisions of the policy, all he need do is bring himself within the field therein defined and show his injury or disability was proximately and predominantly caused through violent, external and accidental means. He then has brought himself within the policy, and the terms thereof have been met. He is not required to show there were no latent causes, or other conditions which might have contributed to the result, indirectly or in part. His duty is affirmative; he is not charged with the duty of negativing anything. When he brings himself within the insuring clause he has made his case--should we use that hackneyed but inapt expression, a prima facie case--and any exceptions or conditions which would then deny him relief, take him out of the indemnity provisions, render them inoperative as to him, are matters of defense, and the burden thereof rests upon the insurer. Vernon v. Iowa State Traveling Men's Ass'n, 158 Iowa 597, 138 N.W. 696; Jones v. United States Mutual Accident Ass'n, 92 Iowa 652, 61 N.W. 485; Carnes v. Iowa State Traveling Men's Ass'n, 106 Iowa 281, 76 N.W. 683, 68 Am. St. Rep. 306. To further demonstrate the correctness of our holding that the language, "resulting directly and independently of all other causes", and "solely through external, violent and accidental means", does not bar recovery by the insured under a record such as this, we cite, out of many, the following well reasoned cases, construing the meaning and effect of similar clauses: Wheeler v. Fidelity & Casualty Co., 298 Mo. 619, 251 S.W. 924 (a case not unlike this one); American Bonding Co. v. Morrow, 80 Ark. 49, 96 S.W. 613, 117 Am. St. Rep. 72.

"Starting with a bodily injury, all morbid changes in the exercise of vital functions or the texture of the bodily organs which result from or are induced by such injury should be regarded as the effect thereof, and not as independent causes. When death results from any such morbid change so resulting from or induced by such injury, the injury, and not the morbid change induced by it, is the cause of death. Beginning with a primary cause, conditions induced by such cause are effects thereof; and every condition so induced must be considered in relation thereto as an effect, and not as a cause." Ward v. Aetna Life Ins. Co. of Hartford, 82 Neb. 499, 118 N.W. 70, 72.

The following cases also support this position: Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560; Driskell v. United States Health & Accid. Ins. Co., 117 Mo.App. 362, 93 S.W. 880; Continental Casualty Co. v. Lloyd, 165 Ind. 52, 73 N.E. 824; Thornton v. Travelers' Ins. Co., 116 Ga. 121, 42 S.E. 287, 94 Am. St. Rep. 99; Modern Woodmen Accid. Ass'n v. Shryock, 54 Neb. 250, 74 N.W. 607, 39 L. R. A. 826; Freeman v. Mercantile Mutual Accid. Ass'n, 156 Mass. 351, 30 N.E. 1013, 17 L. R. A. 753; Lawrence v. Accident Insur. Co., 7 Q. B. D. 216; Leland v. Order of United Commercial Travelers of America, 233 Mass. 558, 124 N.E. 517; Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L. R. A., N. S., 493; Illinois Com'l Men's Ass'n v. Parks, 7 Cir., 179 F. 794, 103 C. C. A. 286; Ludwig v. Preferred Accid. Ins. Co., 113 Minn. 510, 130 N.W. 5; Collins v. Casualty Co. of America, 224 Mass. 327, 112 N.E. 634, L. R. A. 1916E, 1203; Patterson v. Ocean Accid. & Guar. Corp., 25 App. D.C. 46; Manufacturers' Accid. Indem. Co. v. Dorgan, 6 Cir., 58 F. 945, 7 C. C. A. 581, 16 U.S. App. 290, 22 L. R. A. 620; Western Com'l Travelers' Ass'n v. Smith, 8 Cir., 85 F. 401, 29 C. C. A. 223, 56 U.S. App. 393, 40 L. R. A. 653.

Bear in mind that there are no exceptions in the insuring clause; it contains no provisions about bodily infirmities, bacterial infections, or disease, or other exceptions within the field otherwise covered by the insuring clause. Such limitations or exceptions as are set forth in the insuring clause must be met by the insured; but limitations, exceptions or conditions which may relieve the insurer from liability, which may be set forth in the policy outside of the language of the insuring clause, or which may exist outside of the policy entirely, must be made and established by the insurer to escape liability thereunder.

Referring back to the policy, after the insuring clause with its eight paragraphs as to indemnities, there is a distinct break in the policy, indicated by a space and a line drawn across the policy. Then, under a heading "Standard Provisions", are fifteen paragraphs which have nothing to do with any matters involved in this case. On the third page are eight paragraphs, numbered "A" to "G", inclusive, entitled "Additional Provisions". Subdivision "C", the one under discussion here reads:

"C. The insurance under Parts I to IV inclusive [the accident provision], shall not cover accident, injury, disability, death or other loss caused directly or indirectly, wholly or partly, by bodily or mental infirmity, hernia, ptomaines, bacterial infections (except pyogenic infections which shall occur with and through an accidental cut or wound), or by any other kind of disease. * * *" (Italics and bracketed expression added.)

Subdivision "A" provides, inter alia, that "disease," when used in the policy, means "sickness." In the opinion rendered, we discussed this question and held that "disease" means a pre-existing disease and not a mere bodily condition, temporary disorder, or departure from normal, not amounting to a disease or sickness within the connotation of that term in common parlance. Counsel for insurer now argues that the above quoted provision excepts from the policy any injury or loss to which any of the infirmities named indirectly contributes. But the insurer wrote the policy and it did not except loss to which the ailments specified indirectly contributed, but only those which were caused by such ailments. It requires no argument to show that a direct or an indirect cause is a different thing entirely from a contributing cause. And therein lies the weakness of counsel's argument, when he does, and asks us to read into the exception the words italicized below so to make the exception read, "caused directly or indirectly, or contributed to, wholly or partly, by * * * disease." An indirect cause is a cause of a cause. It is a cause which sets in operation an active cause. A cause which contributes to a result is an independent cause, not set in operation by the other cause and operating independently of it in tending to produce the result. If the second, or secondary cause, is set in motion or in operation by the primary cause, or if its operation is controlled, directed or influenced in its action or behavior, by the primary or first cause, then the second or secondary cause is not an independent cause, not a contributing cause, operating in parallel, but operates in series and is a result of the first cause.

This provision of...