First Nat. Bank v. Equitable Life Assur. Soc. of U.S., 6 Div. 44.

• Decision Date: 10 November 1932
• Docket Number: 6 Div. 44.
• Citation: 225 Ala. 586,144 So. 451
• Parties: FIRST NAT. BANK OF BIRMINGHAM v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Alabama Supreme Court

144 So. 451

225 Ala. 586

FIRST NAT. BANK OF BIRMINGHAM v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

6 Div. 44.

Supreme Court of Alabama

November 10, 1932

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action on a policy of life insurance by the First National Bank of Birmingham, as executor of the estate of Harold Elmer Bissell, deceased, against the Equitable Life Assurance Society of the United States. From a judgment for defendant plaintiff appeals.

Affirmed.

E. L. All, W. A. Rose, and Bradley, Baldwin, All & White, all of Birmingham, for appellant.

Howze &amp Brown, of Birmingham, for appellee.

BOULDIN J.

The action is upon a policy of accident insurance; more specifically upon the "Special Provisions" of a life policy providing "Double Indemnity" in case of death "in consequence of bodily injury effected solely through external, violent and accidental means *** and as the direct result thereof independent of all other causes."

Another clause stipulates that such agreement shall not cover death from engaging in certain hazardous occupations, etc "or death resulting directly or indirectly from bodily or mental infirmity, ptomaines, or bacterial infections other than infection occurring simultaneously with and in consequence of an accidental cut or wound."

The issues on which the cause was tried were presented by special pleas alleging the death of the insured resulted directly or indirectly from "bodily infirmity" or from "bacterial infection."

The trial court gave the affirmative charge,

p>Page with hypothesis, for defendant. This ruling is presented for review.

It was agreed between the parties as follows: "In the month of May, 1929, Mr. Bissell [the insured] was in Chicago engaged in the motor transportation business, and he was in the Congress Hotel. He left the cigar counter and had gone to the door and had some money in his hand. There was a crowd in the hotel and just about the time he got near the door he was hit in the back of the head at the base of the skull with a blackjack by some man that disappeared in the crowd and who was unknown to Mr. Bissell and the man escaped. Mr. Bissell sustained a fracture of the skull and was taken to a hospital. That was in May, 1929. He was in the hospital about two weeks and he then returned to Birmingham. That was approximately nine months before he died."

The plaintiff's evidence tends to show: After his return to Birmingham, Mr. Bissell received no further medical treatment; after about four weeks he had apparently recovered from the injury, engaged actively in his business, was apparently in good health, and looked well.

On February 14, 1930, he had an attack of earache, found to have an abscess in the ear. This was lanced, and the patient given opiates to ease his pain; but pain with nausea persisted for some hours.

Mrs Bissell testifies: "A little before midnight I went down to fix the ice bags and when I came back to the room Mr. Bissell was up; he was getting out of bed, standing up, and I told him to wait a minute, I would help him, and he said he did not need any, but I went over and did reach his side and put my shoulder against him. He weighed over 200 pounds and I put my shoulder up to help him. I could not hold him when he fell and his head hit the baseboard of the room and he never knew anything else."

He died the following afternoon.

The further evidence consisted of the testimony of physicians of unquestioned competence, all introduced by plaintiff. Briefly their evidence is to this effect:

There was a wound on the temple and some bruises on the body attributable to the fall in the room.

An autopsy revealed the results of an old injury to the temporal lobes of the brain. A photograph of same is in the record. This injury was attributable to the former blow on the back of the head, known as contrecoup bruises, or injuries to the brain on the side opposite the blow.

The injury had produced small hemorrhages of the brain, which had become abscessed or walled in by nature's protective processes, and prior to the fall in the room had become dormant, with fair prospect of final absorption, nothing intervening to prevent.

But there were adhesions to the skull, and an abscessed condition. With one accord the physicians conclude the blow on the temple by the fall in the room ruptured the abscess, leading to meningitis, the inflammation of the meninges, or coverings of the brain, as the immediate cause of death. They further agree that the fall in his room would not have caused death but for these lesions of the brain.

The abscess of the ear was a local, temporary trouble, had no connection with the brain lesions. The ear trouble may have disturbed the sense of balance, and so led to the fall.

The abscess of the brain and the adhesions mentioned made a serious condition, in that rather a wide range of probabilities might bring on meningitis, and especially was a blow on the head, not serious within itself, likely to bring fatal results. One physician says, if such condition had been known, he would have advised entire quiet as a precaution against dangers from the ordinary activities of life.

We think the foregoing fairly presents the pertinent evidence. We discern no conflict among the witnesses.

On this state of facts, did death result "directly or indirectly from bodily infirmity" within the meaning of this policy?

We may note that this policy only covers deaths resulting within ninety days following the accident, and hence the blow nine months before cannot be considered as an accident covered thereby.

The "bodily infirmity" at the time of the fall, regardless of its origin, is the matter of inquiry.

In dealing with accident policies whose coverage is defined by the general terms, such as death resulting directly and solely from the accidental injury, exclusive or independent of all other causes, this court has approved and adopted the rule announced by other courts to the following effect: "*** Where accidental injury aggravated a disease and hastened death so as to cause it to occur at an earlier period than it would have occurred but for the accident, it is the direct, independent, and exclusive cause of death at the time." Benefit Ass'n of Ry. Employees v. Armbruster, 217 Ala. 282, 284, 116 So. 164, 166.

This view of proximate cause is applied in our cases, notwithstanding the grave condition of the disease, and notwithstanding the accidental injury was such as not to be fatal but for the disease or bodily infirmity. Standard Acc. Ins. Co. of Detroit, Mich., v. Hoehn, 215 Ala. 109, 110 So. 7; Benefit Ass'n of Ry. Employees v. Armbruster, 217 Ala. 282, 116 So. 164; Id., 224 Ala. 302, 140 So. 356.

If the present policy contained only the general clause (copied in statement of the case above) defining the coverage or liability assumed by the insurer, without question the facts make a case of liability under our cases, supra.

But in the Hoehn Case, supra, we said: "In some of the cases denying recovery on facts of the same general character as those here involved the policies contained a stipulation that the insurance thereby provided did not cover 'any death which resulted wholly or in part directly or indirectly from disease or bodily infirmity,' and it may be conceded that, had the policy here in suit contained a clear and unlimited stipulation to that effect, there could be no recovery." 215 Ala. 110, 110 So. 7, 9.

And in the Armbruster Case, first appeal, this: "There is conflict in the authorities on this subject, and some of the cases are in irreconcilable conflict, but a good deal of confusion has arisen out of not drawing a distinction between certain clauses in the policy dealing with the accident or injury resulting in death and another clause excepting the liability from the terms of the policy, to wit: 'Where death has resulted wholly or in part, directly or indirectly, from disease or bodily infirmity."' 217 Ala. 284, 116 So. 164, 166.

This distinction was again mentioned on second appeal of the Armbruster Case, supra.

Appellant strongly argues that these several announcements were dicta, in that the court was not considering policies excluding liability for death resulting, directly or indirectly, from disease or bodily infirmity; that the general clause limiting liability "effected solely" through accidental means, "as a direct result thereof independent of all other causes," is as fully exclusive as the special clause; that, having approved the proximate cause rule, as defined in our cases, its logical application demands a departure from such dictum; that the great weight of authority does not sustain any such differentiation.

Without discussion of obiter dictum or judicial dictum, it will suffice to say that these decisions expressed the considered judgment of the court in writing the law of the cases in hand with its limitations; also the views of the court touching a sound basis for harmonizing conflicting decisions elsewhere.

We have made quite a full and careful study of the authorities cited by counsel on both sides, and other cases, with a view to re-examine the soundness of the distinction announced in our cases, supra, and with the further view to writing the sound rule as applicable to the case now before us.

Many cases do treat a general clause, defining the coverage in terms of like effect with the policy here involved, as excluding liability where disease or bodily infirmity is an efficient cause of death. These cases, in the main, follow the rule of concurring efficient causes, not in harmony with our cases where such general terms only are employed. But the pertinent point is that, construing such general terms as "directly, solely and...