Fidelity & Casualty Co. v. Meyer

• Decision Date: 09 December 1912
• Parties: FIDELITY & CASUALTY COMPANY v. MEYER
• Court: Arkansas Supreme Court

152 S.W. 995

106 Ark. 91

FIDELITY & CASUALTY COMPANY v. MEYER

Supreme Court of Arkansas

December 9, 1912

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

H. B Means and Bradshaw, Rhoton & Helm, for appellant.

1. Appellee can not recover if the death of Louis Meyer was caused by an injury aggravating a cancer or a cancer aggravating an injury. 78 A. 317; 179 F. 794, and cases cited; 79 F. 423; 133 N.W. 752.

2. The contract was void because of the breach of warranties on the part of insured relative to his mental and physical health.

The court should have instructed the jury as requested by appellant to the effect that if Meyer was afflicted with or had a cancerous growth in any part of the chest or abdominal cavity on April 17, 1911, the date of the contract sued on then he was not sound physically, and that they should find for the defendant. 14 S.W. 125, 117 U.S. 519.

The warranty was material, going to the validity of the contract itself. 84 Ark. 59; 58 Ark. 528; 71 Ark. 295; 72 Ark. 620; 97 Me. 176; 112 N.W. 113; 139 Mich. 423; 104 S.W. 297; 95 Va 773.

3. Breach of warranty as to age avoids the contract. It did not become a binding contract until accepted by the insured, and when he accepted it with the warranty therein that his age was fifty-nine years and that he was in good health, he was bound by such warranty. 117 U.S. 519; 91 Me. 250; 96 Minn. 441; 89 P. 929; 110 N.W. 452.

Mehaffy, Reid & Mehaffy, for appellee.

1. The language of the policy requires simply that the accident be the cause of the death independently of all other direct causes. Unless the death of the insured in this case resulted directly or indirectly, or happened because the deceased had a cancer, then the fact that he had such cancer when he received the injury is unavailable as a defense, although its presence may have lessened his vitality and strength to withstand the injury. The first instruction given at plaintiff's request was correct. 61 L. R. A. 495, 126 S.W. 111; 156 Mass. 351, 17 L. R. A. 753, 30 N.E. 1013; 93 S.W. 880, 882; 45 N.E. 749; 135 S.W. 501.

2. In determining a question of forfeiture the court will look to the circumstances surrounding the parties, their course of conduct in relation to each other etc., to ascertain their true intent. 97 Ark. 522. Forfeitures are not favored, and any circumstance indicating an election to waive a forfeiture is promptly seized upon by the courts. 130 N.Y.S. 455. A construction will not be adopted which will defeat a recovery if it is reasonably possible to adopt a construction that will permit a recovery. 94 Ark. 417. Any agreement, declaration or course of action on the part of an insurance company may constitute a waiver of a forfeiture. A waiver may be inferred from circumstances. 159 Ill.App. 222; 132 N.Y. 200; 94 Ark. 294. See also, 39 L. R. A. 827; 65 Ark. 581-592; 58 Ark. 535; 81 Ark. 92; 120 U.S. 190.

3. Appellant can claim no forfeiture for misstatement of age in the face of the jury's finding that the age of the insured was incorrectly inserted in the schedule of warranties by the appellant. 143 S.W. 114; 52 Ark. 11; 71 Ark. 295; 65 Ark. 581; 147 S.W. 882.

MCCULLOCH, C. J. KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

This is an action to recover on a policy of accident insurance whereby the defendant undertook to insure "against bodily injuries sustained through accidental means, resulting directly, independently and exclusively of all other causes in death." There was a recovery below for the full amount of the policy, together with attorney's fees, etc. , and the defendant appealed.

The assured had carried an accident policy in this company continuously for about seventeen years, the policy being renewed from time to time upon the same terms, sometimes a new policy being issued, and at others the renewal being accomplished by certificate continuing the policy for another period.

While standing in a wagon preparatory to seating himself, he was thrown backwards by the sudden and unexpected start of the horse, which caused him to fall on his back or right side in the region above the hip and strike an iron handhold upon the wagon seat. He threw both hands to his side and at once complained of the injury. The evidence tends to show that he continued to complain of the injury, and was confined to his bed from that time until his death, which occurred several weeks later. A few days after the accident he began to have hemorrhages from the mouth, which continued at intervals until his death. A short time after the accident he also commenced having hemorrhages from the bowels, and these continued until death. Prior to the accident he had every appearance of being a healthy man, and gave no evidence of having a fatal disease; but a post mortem held several days after his death revealed the fact, according to some of the testimony, that there was a diseased condition or tumorous growth on the head of the pancreas which enveloped the duodenum. Some of the surgeons gave opinions that the growth was a cancer of at least several months standing. While this was not directly disputed by other testimony, there is evidence to the effect that the physical condition of the man was inconsistent with the long continued presence of a malignant cancer and that, therefore, the tumorous growth was dormant rather than malignant, or that it might have been the result of the blow at the time of the accident. The autopsy developed the fact that the hemorrhage from the bowels resulted from a rupture of the duodenum or of the pancreas which enveloped it, but the testimony leaves a doubt as to whether this did not result from the erosion caused from the alleged cancerous growth or from the blow at the time of the accident.

The evidence is sufficient, we think, to warrant the finding that the rupture was caused by the blow and that death resulted from this injury.

It is earnestly insisted that the evidence is insufficient to show that the fall in the wagon was of sufficient force or occurred in such manner as to produce any injury. Under the circumstances, as described by the only eye-witness, it does appear somewhat improbable that a severe injury could have occurred in the manner related; but it can not be said to be an impossibility for the injury to have occurred in that way, and the testimony is sufficient to establish the fact that a severe injury did, in fact, result from the fall. These matters, together with the law applicable to the case, were submitted to the jury in the following instructions:

"1. You are instructed that you are the judges of the cause of the death of Louis Meyer and if you find from all the facts and circumstances in evidence in this case that on the 29th day of April, 1911, the said Louis Meyer while in the act of seating himself or about to seat himself in a wagon preparatory to driving from his place of business to his residence, the said wagon in which he was situated was suddenly and unexpectedly started thereby accidentally throwing him, the said Louis Meyer, violently against an iron handhold or seat guard upon the seat of the said wagon, thereby bruising the back or side of the said Louis Meyer, and at the time of receiving the such bruise or injury the said Meyer was afflicted with a latent or dormant cancerous growth or formation within his body and which growth or formation was affected by said bruise and excited and aroused to rapid growth causing the erosion of blood vessels within the body of said Louis Meyer and consequently hemorrhages which resulted in his death on the 12th day of May, 1911, independently and exclusively of all other direct causes; that is to say that he would not have died as and when he did if the accident had not occurred; that while death from the cancer might have resulted, it would have been deferred until a later period of his life, you will find for the plaintiff."

It is contended that that instruction is wrong and that it involves an erroneous construction of the terms of the policy in that it permits a recovery even though the previously existing disease has co-operated in producing death. The determination of this question involves the construction of that part of the policy which limits liability to "bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes in death." The effect of this instruction was to make the company liable under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury even though death from the disease might have resulted at a later period, regardless of the injury. We are of the opinion that that is the correct interpretation of the contract, for if the injury, by aggravating the disease, accelerated the death of the assured, then it resulted "directly, independently and exclusively of all other causes." In other words, if death would not have occurred when it did but for the injury resulting from the accident, it was the direct, independent and exclusive cause of death at that time, even though the death was hastened by the diseased condition. This construction of the contract is sustained by some of the authorities.

Fetter v. Fidelity and Casualty Company, 174 Mo. 256, 73 S.W. 592, involved the construction of a similar policy. In that case the assured sustained an accidental injury which caused a rupture of the right kidney, the lower part of which was found to be cancerous. The rupture was between the normal and cancerous parts, and the hemorrhages which caused the death were from the rupture. The court, in disposing of the matter, said:

"The contention of the defendant is that the accident would not have resulted

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