Independent Life & Acc. Ins. Co. v. Maxwell

• Decision Date: 24 July 1974
• Citation: 301 So.2d 85,53 Ala.App. 396
• Parties: The INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY, a corporation v. Willie J. MAXWELL. Civ. 341.
• Court: Alabama Court of Civil Appeals

Page 85

301 So.2d 85

53 Ala.App. 396

The INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY, a corporation v. Willie J. MAXWELL.

Civ. 341.

Court of Civil Appeals of Alabama.

July 24, 1974.

Rehearing Denied Aug. 21, 1974.

Russell, Raymon & Russell, Tuskegee, for appellant.

Radney & Morris, Alexander City, for appellee.

HOLMES, Judge.

This is an appeal from a jury verdict and judgment rendered thereon in a suit for payments allegedly due on four separate policies of insurance issued by appellant-insurance company insuring the life of appellee's wife against death by accidental means.

Appellant-insurance company denied liability by its plea in short by consent and based its defense on a denial of appellee's contention that the death of his wife was due to accidental means as covered by the policy.

Trial was held in the Circuit Court of Macon County; the jury rendered a verdict in favor of appellee-plaintiff for $5,000; and a judgment was rendered thereon. Appellant-insurance company made a motion for a new trial which was overruled, and now appeals to this court.

Learned counsel for appellant argues eleven assignments of error, of which one deals with the failure of the trial court to give the affirmative charge in favor of the appellant; three relate to evidentiary matters; six urge error in the failure of the lower court to give certain written charges; and one assigns as error the failure of the lower court to grant the motion for new trial which embodies the above mentioned assignments of error.

Pertinent parts of the policies in question are as follows:

'Death by accidental means is defined as death resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental means, of which, except in the case of drowning or internal injuries revealed by autopsy, there is a visible contusion or wound on the exterior of the body, and occurring within 90 days after sustaining such injury. . . .

'The Accidental Death Benefit Provision shall not cover death resulting directly or indirectly from bodily or mental infirmity, or disease, or medical or surgical treatment therefor or infection of any nature unless such infection is incurred through an external visible would sustained through violent and accidental means. . . .

'Death by accidental means is defined as death resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental means, of which, except in the case of drowing or internal injuries revealed by autopsy, there is a visible contusion or would on the exterior of the body and occurring within 90 days after sustaining such injury. . . .

'EXCEPTIONS

'The Agreement as to benefit under this Policy shall be null and void if the Insured's death or injury results, directly or indirectly, from any of the following causes:

'6. Bodily or mental infirmity, or disease, or medical or surgical treatment therefor;

'8. Infection of any nature unless such infection is incurred through an external visible wound sustained through violent and accidental means.'

The clauses quoted above clearly indicate that the policies in question all contain the so-called 'additional clause', which Alabama courts have held to mean that if the disease, in cooperation with the accidental injury, is an efficient cause of death, then there can be no recovery for accidental death. Union Central Life Ins. Co. v. Scott, 286 Ala. 10, 236 So.2d 328; Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 158 So.2d 667; First National Bank v. Equitable Life Assur. Soc., 225 Ala. 586, 144 So. 451.

However, we have further held that the presence of the additional cause in insurance policies does not mean that mere feebleness, nor predisposition to recurrence of former disease, nor every infirmity which may aggravate the effects of an accidental injury is to be regarded as the cause of death. First National Bank v. Equitable Life Assur. Soc., Supra.

Moreover, we have previously observed that if the injury in question starts a chain reaction resulting in death, then recovery may be had even if some links in the chain are dormant diseases or physical condition without which the chain would be broken. In order to determine this, each case must be particularized. Liberty National Life Ins. Co. v. Reid, Supra; New York Life Insurance Co. v. McGehee, 5 Cir., 260 F.2d 768.

In Union Central Life Ins. Co. v. Scott, Supra, quoting from the language of Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837, our supreme Court, in dealing with a policy involving an additional clause, stated the following:

'The provision in the policy contract, viz., 'or directly or indirectly from bodily or mental infirmity or disease in any form,' means, and can only mean, when construed in connection with the precedent clause, that, if the insured was suffering at the time of the accident with some infirmity or disease, and the accidental injury, operating with the disease, produces death, then this would not create liability; but, where the accident directly and immediately, exclusive of other causes, produces the bodily infirmity or disease, and death results therefrom, then the accident must be held to be the sole proximate cause of the death.

'To hold as contended for by appellant, this clause in the policy contract would require a construction that it embraced accidents, which produced immediate death, without intervening complications, which the accident itself produced.

'To state it in different language, the exception in the policy is against liability for death produced by the accident and disease, which the accident did not produce, and not from liability for death caused by disease or infirmity, which the accident itself did produce. . . .

'There were tendencies of the evidence which did not justify the court in giving, at the request of the defendant, the affirmative instruction in its behalf. The evidence required the submission of the case to the jury.' (227 Ala. at 153, 148 So. at 843)

In New York Life Insurance Co. v. Mc Ghee, Supra, the defendant insurance company asserted that the insured had arteriosclerosis at the time of the accident and that this, among other conditions, contributed to or caused his death. The policy contained the additional clause. In discussing the problem, that court stated:

'A review of the Alabama cases and the decisions of this Court shows that considerable latitude must be allowed the jury in determining the question of causation. An insurer cannot escape liability simply by showing that some disease may have contributed to some extent to the insured's death. Most elderly people have some ailment, some latent disease. When an old person is injured, almost invariably an ailment is aggravated, a dormant disease activated, and the effects of the injury intensified because of general frailty and lack of resistance to illness. Progressive weakness and increasing complications follow any time an old person is put to bed for any length of time. In every case therefore it is difficult to separate the effects of the accident from the effects of disease.

The insurer would have us hold that there can be no recovery unless Death is present at the scene of the accident, or openly waits in continuous attendance on an injured insured from the moment of injury to the moment of death. Alabama courts, and this Court, take a more reasonable view. . . .' (Emphasis added)

The above quoted language has been quoted approvingly in Independent Life and Accident Ins. Co. of Jacksonville v. Maddox, 284 Ala. 532, 226 So.2d 315; and Union Central Life Ins. Co. v. Scott, Supra.

Additionally, the rule in this state is well settled that in civil cases the question must go to the jury if the evidence or reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the smallest trace, a scintilla, in support of the theory of the complaint. Union Central Life Ins. Co. v. Scott, Supra; Lankford v. Mong, 283 Ala. 24, 214 So.2d 301; Payne v. Jones, 284 Ala. 196, 224 So.2d 230. We further note that the rule is the same if the scintilla of adverse evidence is developed by the cross-examination of any witness, thus presenting a jury question. Chestang v. Kirk, 218 Ala. 176, 118 So. 330; Jones v. Bell, 201 Ala. 336, 77 So. 998.

We further note that Alabama law clearly provides that in determining the propriety of a general affirmative charge when requested by the defendant, the evidence most favorable to the plaintiff must be accepted as true. Purity Ice Co., Inc. v. Triplett, 257 Ala. 116, 57 So.2d 540; Key v. Dozier, 252 Ala. 631, 42 So.2d 254.

We therefore must look at the pertinent facts and tendencies of the evidence below.

Plaintiff-husband had been married to the deceased approximately a year before her death on September 20, 1972, when she was found dead in her automobile which had apparently run off the road late that evening. The only visible trauma on deceased's body was a cut on her forehead about a centimeter long and a couple of millimeters deep. Plaintiff sued defendant-insurance company on the accidental death policies, and defendant denied liability under its plea in short by consent.

The controlling issue in the case at trial was the cause of death of the deceased.

The plaintiff-husband testified that his wife had been in good health during the period of their marriage and had had no problem in breathing at any time.

Appellee-plaintiff introduced into testimony the deposition of Dr. Robert Jones, a pathologist, who performed an autopsy on the decedent on two occasions. Dr. Jones stated there was a laceration and contusion on deceased's right forehead.

The doctor stated that he found evidence of chronic bronchitis and that each bronchial was filled with mucus plugs.

Plaintiff propounded the following hypothetical question which was answered by Dr. Jones:

'Q Now, doctor, I am going to ask...