Clayton v. Metropolitan Life Ins. Co

• Decision Date: 29 December 1938
• Docket Number: 5993
• Citation: 96 Utah 331,85 P.2d 819
• Court: Utah Supreme Court
• Parties: CLAYTON v. METROPOLITAN LIFE INS. CO

85 P.2d 819

96 Utah 331

CLAYTON v. METROPOLITAN LIFE INS. CO

No. 5993

Supreme Court of Utah

December 29, 1938

Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.

Action by Walter B. Clayton against the Metropolitan Life Insurance Company to recover on an accident policy for total and partial disability sustained by plaintiff. Judgment for plaintiff for $ 243, and defendant appeals.

AFFIRMED.

Van Cott, Riter & Farnsworth, of Salt Lake City, for appellant.

Ingebretsen Ray, Rawlins & Christensen, of Salt Lake City, for respondent.

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

OPINION

FOLLAND, Chief Justice.

The defendant has appealed from an adverse verdict and judgment in the Third Judicial District Court for Salt Lake County where a trial de novo was held upon appeal thence by the plaintiff after a judgment of no cause of action had been rendered in the City Court of Salt Lake City. The action is for damages for total and partial disability resulting from injuries allegedly within the terms of an accident policy issued by the defendant.

The complaint alleges that while plaintiff was mowing that portion of his lawn which slopes toward a sidewalk his feet slipped from under him, hurtling him to the sidewalk while he maintained his hold on the lawnmower, the handle of which hit the sidewalk with one point and his abdomen fell forcibly against the other point, causing sharp pain and an injury which partially disabled him until an operation was performed during which his appendix was removed, resulting in total disability and further partial disability during convalescence. It was alleged that a certain policy issued by defendant entitled plaintiff to compensation for disability and medical expenses as follows: Medical expenses and hospitalization, $ 100; total disability for about four weeks at $ 25 per week; and partial disability for about eight weeks at $ 12.50 per week.

The answer admitted issuance of the policy but denied generally the other allegations. The jury rendered a verdict for $ 286 on which the court gave judgment; but this was reduced to $ 243 on a motion for new trial by defendant when plaintiff admitted overlooking a provision that total disability was compensable only if it began within two weeks after the injury. With this reduction of the judgment the motion for new trial was denied.

Appellant had moved for a directed verdict for lack of evidence that the injury caused the disability and assigns as error, inter alia, the denial of this motion.

The policy insured the respondent against "the results of bodily injuries sustained while this policy is in force and caused directly and independently of all other causes by violent and accidental means * * *." And it specifically excluded recovery for the following:

"accident, injury, disability, death or any other loss caused wholly or partly, directly or indirectly by disease or bodily or mental infirmity or medical or surgical treatment therefor, nor shall it cover injury, disability, death or any other result caused wholly or partly directly or indirectly by * * * disease germs or any kind of infection whether introduced or contracted accidentally or otherwise (excepting only septic infection of and through a visible wound caused directly and independently of all other causes by violent and accidental means.)"

Appellant contends that respondent had a diseased appendix at the time of the accident and that this contributed to the disability and should bar recovery. In pursuance of this theory the court instructed the jury as follows:

"If you believe from all the evidence in the case that plaintiff's appendix was in a diseased condition and that the accident which occurred on October 27th lighted up or aggravated the diseased condition or infirmity causing the same to become active or acute he cannot recover for any disability resulting therefrom and your verdict must be for the defendant."

In finding for the respondent in the face of this instruction the jury must have determined either that the appendix was not in a diseased condition at the time of the accident or that, despite the diseased appendix, the accident did not operate on that condition to light up or aggravate it but caused the disability independently of the diseased condition. There is no evidence to support this second possible explanation of the verdict, so it must therefore be supported on the first hypothesis, if at all.

Plaintiff-respondent was an osteopathic physician and surgeon, licensed to practice in the State of Utah. His training included a study of all the courses and subjects taught to an M. D. in medical school. He testified to a knowledge of the symptoms of appendicitis and that prior to October 27, 1935, he had had none of those symptoms, Dr. Albaugh, who recommended and performed the abdominal operation, testified that a fall such as the respondent had could produce, in whole or in part, the appendicitis and consequent disability. To the same effect was the testimony of Dr. Kerby, an X-ray specialist but also formerly a physician and surgeon.

Dr. A. C. Callister testified for appellant that in his opinion the respondent has been suffering from appendicitis for some time before November 17, 1935, and that his appendix was diseased at the time of the accident; that in his opinion, based on his experience, such a fall as the respondent had could not produce the appendicitis from which he suffered without producing other injuries not present in this case.

Appellant urges that the evidence was insufficient to go to the jury because nowhere did any medical expert testify that the accident and injury caused the appendicitis. The question asked Dr. Albaugh was whether or not the condition found at the time of the operation "could have been caused in the whole or in part by the injury sustained when plaintiff came in contact with the handle of the lawn mower." He answered: "I thought it might. I treated the case as an injury up to the time of the operation."

It should be noted here that respondent's counsel did ask Dr. Albaugh if appendicitis was caused by the accident and injury, but objection was made that the question called for a "conclusion that only the jury may find." The court sustained the objection. Whether this was error is not before us. Appellant contends that Dr. Albaugh did not testify that the accident was the cause of the appendicitis. The testimony of Dr. Albaugh was to the effect that the accident could have caused the appendicitis. There is also other testimony and evidence that the accident caused the appendicitis. The plaintiff so testified, and the testimony of Dr. Kerby supports plaintiff's case. There was a direct conflict in the evidence as to the cause of the disability, and there was substantial evidence from which the jury could find that respondent's appendix was not diseased at the time of the accident and that the disability was the direct result of the accident.

Neither Browning v. Equitable Life Assur. Soc., 94 Utah 532, 72 P.2d 1060, (on rehearing) 94 Utah 570, 80 P.2d 348, nor Lee v. New York Life Ins. Co., 95 Utah 445, 82 P.2d 178, is analogous. In the Browning Case a condition existed in the system of the injured man which the sprain permitted to develop and become virulent in the weakened tissue produced by the sprain; and in the Lee Case there was without doubt a pre-existent gall bladder infection, but the jury must have found it had become latent and that the blow ruptured the infected gall bladder which in turn made necessary the operation which resulted in death and hence was the cause of death. In the case at bar it was permissible for the jury to find that respondent's appendix was not diseased or infected prior to the blow and that the blow to the abdomen was the sole cause of appendicitis and disability, without any question of pre-existent condition or concurrent, contributing or indirect cause.

Appellant assigns as error the refusal to admit into evidence certain portions of the hospital record of the case which might have had an important bearing on the case and which refusal constituted prejudice if it be found erroneous. On the cross-examination of plaintiff's witness, Dr. Albaugh, it was sought to introduce the entire hospital record, the top sheet of which bore Dr. Albaugh's signature while some other sheets were partially in his handwriting or carried his initials. The court ruled that it would receive in evidence only those portions of the record which were in the witness' handwriting or which were signed and thereby verified by him. This ruling was withdrawn and later, as part of defendant's case, the offer was renewed of the whole record. The court sustained the objection to the whole exhibit, whereupon counsel for defendant offered the separate pages and the court admitted only those written by or authenticated by Dr. Albaugh. The question of what could be admitted as a part of cross-examination or how the record could be used for that purpose is therefore not before us.

The hospital record consisted of several sheets attached together. On some of the sheets the witness had made notations, or had initialed or signed certain portions. He did not know...