Egan v. Preferred Acc. Ins. Co. of N.Y.

• Citation: 269 N.W. 667,223 Wis. 129
• Parties: EGAN v. PREFERRED ACC. INS. CO. OF NEW YORK.
• Decision Date: 10 November 1936
• Court: United States State Supreme Court of Wisconsin

223 Wis. 129

269 N.W. 667

EGAN

v.PREFERRED ACC. INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Judge.

Affirmed.

Action by Gregory J. Egan as plaintiff against the Preferred Accident Insurance Company of New York, defendant, commenced on April 11, 1934, to recover on a policy of accident insurance for a total disability claimed by plaintiff to have been sustained by him as the result of an accident on December 25, 1932. The action was tried to the court and a jury, and a special verdict returned. The finding was that the plaintiff had been totally disabled from December 25, 1932, up to the time of the commencement of the action, and that this disability was caused by the accident independently and exclusively of all other causes. On November 25, 1935, judgment was entered for the plaintiff upon the verdict in the sum of $2,901.61 damages and costs. Defendant appeals. The material facts will be stated in the opinion.

FRITZ, J., dissenting.Geo. H. Gordon, Law & Brody, of La Crosse, for appellant.

Higbee & Higbee, Jesse E. Higbee, and Otto Bosshard, all of La Crosse, for respondent.

WICKHEM, Justice.

Plaintiff was a physician practicing his profession in the city of La Crosse. In May, 1917, he had issued to him from defendant a policy of accident insurance which provided for the payment of indemnities, “If such bodily injury shall, from the date of the accident and independently and exclusively of all other causes, directly, continuously and totally disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, and if during the period of such continuance and total disability, such bodily injury shall be the sole and direct cause of any of the losses enumerated in this part.”

December 25, 1932, during the course of answering a professional call, plaintiff slipped on an icy surface and, although he did not fall, subjected his back to a severe wrench. Although in considerable pain, he made the call and after returning to his home treated the injury by applying an electric pad. It is unnecessary to detail the progress of his difficulty further than to state that ever since the date of the accident he has been wholly incapacitated and unable to attend to his usual duties, which is the basis for a claim for total disability under the accident policy.

Defendant made an investigation and upon findings of its physicians concluded that plaintiff's disability was due to conditions of health rather than exclusively accidental causes, and offered to pay him under a separate health policy also carried with defendant. Plaintiff declined this offer.

[1] The first question is whether there is any evidence to sustain the conclusion of the jury that the accident in question produced total disability independently and exclusively of all other causes. Defendant contends that the record shows plaintiff's total disability to be partly if not wholly, due to a condition of health, and especially to an arthritic condition, existing in his lower back at the time of the accident. Defendant claims that a sacroiliac sprain or strain suffered in the manner complained of would be wholly cured in from two weeks to three months were it not for contributing causes. Reliance is had upon Cary v. Preferred Accident Ins. Co., 127 Wis. 67, 106 N.W. 1055, 5 L.R.A.(N.S.) 926, 115 Am.St.Rep. 997, 7 Ann.Cas. 484, and Cretney v. Woodmen Accident Co., 196 Wis. 29, 219 N.W. 448, 449, 62 A.L.R. 675. In these cases it was held that when at the time of the accident there was an existing disease which, cooperating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independently of all other causes.

In each of these cases, the court was dealing with the relation to an accident of an active disease. The conclusions there expressed must be considered to have been somewhat modified by what was said in Herthel v. Time Ins. Co., 265 N.W. 575, 577, in which this court stated that: “If a disease or bodily condition exists and an accident occurs, to constitute the accidental means the sole cause of an injury, under policies like the one in suit, it is not necessary that the injury or the results thereof would have been as severe as they were had the disease or bodily condition not existed; but it is sufficient if the accidental means would have solely caused some considerable injury had the disease or bodily condition not existed. But, if no considerable injury at all would have resulted had the insured not been afflicted with the existing disease or condition, the accidental means cannot be considered as the sole cause of the injury.”

Applying the doctrine of the Herthel Case to this case, in the light of the evidence, we see no reason to disturb the finding of the jury. The medical experts offered by plaintiff gave testimony from which the jury was entitled to conclude that while there were certain abnormalities of growth in the spine of plaintiff, these were the result of advancing years or congenital anomalies and were not produced by or evidence of an active disease which contributed to plaintiff's present symptoms in co-operation with the accident.It was the view of the plaintiff's experts that the injury resulted in lumbo sacral or sacroiliac strain, and that plaintiff's present symptoms and disability are solely referable to the strain. The import of their testimony must be taken to be that the accident “would have solely caused some considerable injury” had plaintiff's spine been in a perfectly normal condition.

[2] Defendant complains that it appears that plaintiff did not furnish the experts with a complete history of certain difficulties with his spine which antedated the injury. However, on the cross-examination, this circumstance was put to plaintiff's principal expert, who, while recognizing the importance of plaintiff's past history as an assistance to diagnosis, adhered to his conclusion based on actual examination that plaintiff was not afflicted with any disease of the spine, and that the physical anomalies which he did have were not contributing causes to his disability.

It is also contended that the court erred in the submission of the cause in that the special verdict did not present to the jury the real controversy. The special verdict was submitted as follows:

“Question 1. Did the plaintiff, Gregory J. Egan, on December 25th, 1932, suffer bodily injury through accidental means? Answer: Yes.

“Question 2. If you answer question number one ‘yes,’ then answer this question: Was the plaintiff Gregory J. Egan thereby totally disabled from performing the usual duties pertaining to his occupation and profession as a physician and surgeon? Answer: Yes.

“Question 3. If you answer questions one and two both ‘yes,’ then answer this question: Did such disability of the plaintiff Gregory J. Egan, result directly from such bodily injury, independent of all other causes? Answer: Yes.

“Question 4. If you answer question three ‘yes,’ then answer this question: Did such disability, independent of all causes other than the injury suffered through the accident of December 25th, 1932, continue from the time of such accident up to the time of the commencement of this action in April 1934? Answer: Yes.

“Question 5. If you answer question four ‘no,’ then answer this question: What period of time was the plaintiff totally disabled due solely to the accident of December 25th, 1932, independently of all other intervening causes? Answer:_____”

[3] It is contended that the fourth question is misleading; that it inquires whether the disability continued down to the commencement of the action, which was not disputed; and that the words, “independent of all causes,” etc., relate to and modify disability. It is contended that the question should have been whether the bodily injury so sustained on December 25, 1932, acting independently and exclusively of all causes whatsoever, produced and continued to produce total disability down to the time of the commencement of the action. Literally, the objection may be well taken, but we are satisfied that the jury could not have been misled to defendant's prejudice by the form of the question.

[4] Objection is also made to the form of question 5. It is claimed that this question should have been preceded by the statement, “If you answer question three ‘yes,’ and question four ‘no,’ then answer this question,” or, if the present introductory matter was retained, that the question should have been made to read, “What period of time, if any,” etc. In its present form it is claimed to assume that there was total disability due solely to the accident, independently of all other intervening causes and to inferentially direct an affirmative answer to question 3. We think this objection to be without merit. Question 4 was only to be answered in the event that question 3 was answered “yes.” Question 5 was only to be answered in case question 4 was answered, so that question 5 could only be answered if and after question 3 was answered “yes.” Since the jury did not reach question 5 until and unless question 3 should receive an affirmative answer, it cannot be supposed that the form of question 5 would influence the consideration of question three. The introductory matter was literally correct, and the form of the question could not have resulted in prejudice to defendant.

Defendant's principal contention upon this appeal is that the court erred in failing to enter an order for the removal of the cause to the federal...