Graves v. Travelers Ins. Co.

• Decision Date: 20 December 1974
• Docket Number: PAN-WESTERN,Nos. 187--189,s. 187--189
• Citation: 66 Wis.2d 124,224 N.W.2d 398
• Parties: Regina E. GRAVES, Respondent, v. The TRAVELERS INS. CO., Appellant. Regina E. GRAVES, Respondent, v.LIFE INS. CO., Appellant. Regina E. GRAVES, Respondent, v. The PRUDENTIAL INS. CO. OF AMERICA, Appellant.
• Court: Wisconsin Supreme Court

Page 398

224 N.W.2d 398

66 Wis.2d 124

Regina E. GRAVES, Respondent, v. The TRAVELERS INS. CO., Appellant.

Regina E. GRAVES, Respondent, v. PAN-WESTERN LIFE INS. CO., Appellant.

Regina E. GRAVES, Respondent, v. The PRUDENTIAL INS. CO. OF AMERICA, Appellant.

Nos. 187--189.

Supreme Court of Wisconsin.

Dec. 20, 1974.

All three defendants appeal.

Campbell, Brennan, Steil & Ryan, S.C., Janesville, Tod O. Daniel, Janesville, of counsel, for Travelers Ins. Co.

Wickhem, Consigny, Sedor, Andrews & Hemming, Gilbert D. Sedor, Janesville, for Pan-Western Life Insurance Co.

Stafford, Rosenbaum, Rieser & Hansen, John M. Koeppl, Madison, for Prudential Ins. Co. of America.

Noll, Donovan, Bolgrien & Ruth, Robert J. Ruth, Beloit, for respondent.

BEILFUSS, Justice.

Four issues are raised by the defendants:

1. Did the trial court err in instructing the jury that an accident is the sole cause of death if the accidental means would have solely caused some considerable injury had the disease or bodily condition not existed?

2. Was there credible evidence to sustain a jury finding that neither a disease nor a bodily infirmity, directly or indirectly, caused or contributed to cause the death of Andre Graves?

3. Did the trial court commit prejudicial error in admitting evidence concerning an accelerator problem nine days before the accident and in permitting closing arguments, based upon that evidence, that a defective accelerator caused the accident?

4. Is plaintiff entitled to double costs as a matter of law?

All six policies provide in substance that the additional indemnity benefits will be paid if death of the insured occurs 'as a result, directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means' evidenced by a visible contusion or wound on the exterior of the body, except in case of drowning or internal injuries revealed by autopsy.

An exclusion in the policy issued by Travelers provides in addition:

'No benefit under this Provision will be payable if death results from or is contributed to by:

'1. Any bodily or mental infirmity or disease, even though the proximate or precipitating cause of death is accidental bodily injury.'

The two policies by Northern States Life Insurance Company and assumed by defendant Pan-Western, both of which further state, under the heading 'General Provisions,' that:

'The Additional Insurance Benefit provided by this rider shall not be payable if the Insured's death. . . .'

'. . .

'B. Results directly or indirectly from any of the following causes:

'. . .

'(d) Bodily or mental infirmity or illness or disease of any kind.'

The action against Prudential involves three policies issued by that company. Two contain a provision to the effect that the additional indemnity shall not be available if death results:

'. . . directly or indirectly from bodily or mental infirmity or disease in any form. . . .'

The third states that no additional indemnity benefits will be paid if death results:

'. . . directly or indirectly from bodily or mental infirmity or disease, even though drowning or an injury contributed to the death or was the proximate or precipitating cause thereof; . . ..'

Andre Graves, husband of the plaintiff, died on April 8, 1969, at the age of fifty-five. Before leaving the house that morning he prepared breakfast for his wife and himself, ate with her, and took a shower. He was in a cheerful mood and appeared to be in good health. He then left home to go to his place of employment and later to a doctor and to an auto repair shop. He was driving a 1969 Pontiac which he owned for his own use. He was in the used car business.

Nine days earlier his wife had been driving the car on I--90 when the accelerator stuck and the car jerked forward, picking up considerable speed. Mrs. Graves was able to get the car slowed down by sticking her right foot under the accelerator pedal and kicking it up. Mr. Graves was in the car at the time. It took five to ten minutes before the car finally slowed down to its normal speed. In an attempt to remedy the situation, Mr. Graves placed a block of wood under the accelerator pedal. It was removed on the morning in question because Mr. Graves was taking the car to have it repaired.

At approximately 9 a.m., Mr. Graves stopped his car for a stoplight at the intersection of Broad and State Streets in Beloit. The vehicle started to move forward at a normal speed, but when it reached the middle of the intersection it suddenly began accelerating at a high rate of speed. The car veered right, jumped the curb and continued down the sidewalk along Broad Street. It became momentarily stuck between a utility pole and building, but the high acceleration finally forced the car through. It continued down the sidewalk, turned left across the street, jumped a median strip, struck a parked car on the other side of the street and finally crashed into the Junig Motors building on the south side of Broad Street. The tires left acceleration marks on the dry pavement from the middle of the intersection to the point of collision, a distance of 273 feet. One witness estimated that the vehicle was traveling at 50 miles per hour immediately prior to impact. There was conflicting testimony as to whether the light was red or green when the vehicle began moving into the intersection.

When police and ambulance workers arrived at the scene, they found Mr. Graves slumped over onto the front seat of the car. He had a very weak pulse and made one gasp for breath, but then became perfectly still. In removing him from the car, ambulance personnel had to free his right foot, which was stuck under the accelerator pedal. In the ambulance, the attendant noted some blood and saliva in his mouth and gave Mr. Graves a heart massage and applied the resuscitator. He responded only briefly and his heart stopped beating enroute to Beloit Hospital. He was pronounced dead on arrival.

Mr. Graves had suffered multiple injuries in the crash, including compound fractures of both ankles, almost complete severance of one, a broken leg and several broken ribs. The cause of death, however, was bilateral pulmonary embolism. An embolism occurs in the vascular system, normally as a blood clot which has broken loose from the wall of a vein. In Mr. Graves' case, clots had broken loose from veins in the leg or pelvis and traveled to the right and left lung blood vessels, where they stopped the blood flow to the heart.

Mr. Graves had a history of heart problems. He had a heart attack in 1966 and suffered intermittent chest pains thereafter. He had arteriosclerosis, was hospitalized twice in 1968 for heart problems and testing. He was taking blood thinners and nitroglycerin when chest pains occurred. He had had polio in the past and had residual atrophy and partial disuse of his right leg. His medical history also included surgery for gallbladder, hemorrhoids and hernia.

At the trial, there was substantial conflict in the expert medical testimony. The plaintiff's witness, Dr. George M. Kroncke, was a cardiovascular surgeon who had treated Mr. Graves at the University Hospitals in 1968. Dr. Kroncke testified that in his opinion, to a reasonable medical certainty, the cause of death was the 'automobile accident which produced emboli which went into his (Mr. Graves') lungs and caused his death.' He testified that at the time of the crash, the trauma and the squeezing of the muscles in the legs of the deceased forced the clots loose from the vein walls, thus allowing them to be pumped to the lungs where they plugged the blood vessels. From the autopsy records, his prior knowledge of Mr. Graves' condition and other evidence, Dr. Kroncke was of the opinion that the accident occurred first, and the emboli second. He stated, however, that the clots themselves were not caused by the accident, but existed for some period of time prior thereto.

Dr. Kroncke testified that clotting is a normal process in humans, in fact necessary to stop bleeding from lacerations or other means, but stated that they are more likely to grow in legs which are not in active physical use because the muscles of the legs do not force the clots to leave the vein walls and dissolve, which is the normal process. Thus the weakness of Mr. Graves' leg muscles due to polio was a factor conducive to the development of clots, as were his operations, due to the disuse of the legs during the recovery period and his heart problem. Mr. Graves was thus more prone to clotting than the average individual and for that reason was taking anticoagulants.

On cross examination, Dr. Kroncke acknowledged that 'if it were not for the fact that Mr. Graves was predisposed to clotting and the dislodgment of those clots . . . he would still be alive. . . .' In response to questioning by the court, Dr. Kroncke stated that by a 'predisposition to clotting,' he meant that the patient would form more clots than normal. He further stated that normal clotting is not a disease, that there was no evidence that the deceased had any more of a clotting problem than 'any other person of a comparable age and stature,' and that there is no such thing as 'abnormal clotting,' except in 'a few very rare instances.' He reiterated, however, that Mr. Graves, due to his prior medical history, 'would tend to form more clots than you or I.'

Two doctors testified for the defendants, Dr. Jack Manley and Dr. Jordan Frank, who performed the autopsy. Dr. Manley agreed that the cause of death was pulmonary emboli but was of the opinion, to a reasonable medical probability, that the clots broke loose before the accident and that Mr. Graves was already dead when the car went out of control. He further testified that the existence of blood clots which are larger than microscopic in size is abnormal, and would be considered a 'disease or infirmity.' Because of his prior medical history, the decedent was predisposed to...