Lumbermens Mut. Cas. Co. v. Howell

• Decision Date: 22 June 1970
• Docket Number: No. 5--5290,5--5290
• Citation: Lumbermens Mut. Cas. Co. v. Howell, 455 S.W.2d 849, 248 Ark. 1124 (Ark. 1970)
• Parties: LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Stacey Everett HOWELL, Appellee.
• Court: Arkansas Supreme Court

Page 849

455 S.W.2d 849

248 Ark. 1124

LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Stacey Everett HOWELL, Appellee.

No. 5--5290.

Supreme Court of Arkansas.

June 22, 1970.

Leroy Froman, Searcy, for appellant.

Comer Boyett Jr., Searcy, C. E. Blackburn, Heber Springs, for appellee.

GEORGE ROSE SMITH, Justice.

This is an action brought by the appellee to collect total disability benefits under an accident and sickness policy issued by the appellant. The case was submitted to a jury, which returned a verdict for the plaintiff in the amount sued for, $2,694.58. The appellant argues three points for reversal, which we will discuss separately after briefly stating the background facts.

Howell had been actively engaged in farming, but in 1968 he took a job as a construction worker to earn extra money. On May 4 of that year, while Howell was lifting a heavy bucket of fresh mortar, he injured the upper or cervical vertebrae in his neck, resulting in total disability as we have defined that term. Mutual Benefit Health & Acc. Assn. v. Murphy, 209 Ark. 945, 193 S.W.2d 305 (1946).

In 1963 Howell had undergone surgery to correct who ruptured and degenerative discs in the lower or lumbar part of his back. That operation having been disclosed to the insurer, the present policy was issued with an exclusionary rider reading in part as follows:

To induce the * * * Company to issue * * * its Policy * * * notwithstanding the fact that I have heretofore suffered from degenerative and extruded discs I hereby agreee that no indemnity of any kind or amount shall be payable to me or to my beneficiary under said Policy for loss which results wholly or partly, directly or indirectly, from said condition, any complication thereof, treatment or operation therefor in any form.

In instructing the jury the trial court construed the foregoing rider to refer only to the earlier disc trouble in Howell's lower back and not to exempt the defendant from liability for the later injury to degenerative discs in the claimant's neck. The appellant argues that the wording of the rider was sufficiently ambiguous to require that its interpretation be submitted to the jury.

We agree with the trial court, for either or two reasons. First, we perceive no ambiguity. The rider recites that Howell has 'heretofore suffered' from degenerative and extruded discs. The waiver goes only to liability for a loss resulting 'from said condition.' To extend the exemption to some similar condition that might arise in the future in a different part of the insured's body would be to read something into the language of the rider that is not there. Since there is no ambiguity in the wording of the contract, the court was right in refusing to submit such an issue to the jury. Clements v. Fuller, 209 Ark. 849, 192 S.W.2d 762 (1946).

Secondly, even if the appellant's argument be accepted the exemption from liability is for a loss resulting from degenerative and extruded discs. The undisputed medical evidence shows that the discs that were injured when Howell lifted the bucket of mortar were degenerative, but they were not extruded or ruptured. Hence when the policy is construed against the insurer, even a finding of ambiguity would not be sufficient to relieve the appellant of liability in this case.

Next, the policy defines injury as bodily injury resulting from an accident and occurring directly and independently of all other causes. The company argues that the present claim is not covered, because the accident activated a dormant disc condition that contributed to Howell's total disability. We have often held, however, that if the accidental injury is the primary and proximate cause of the disability, it is immaterial that a pre-existing disease is also a contributing factor. See Union Life Ins. Co. v. Epperson, 221 Ark. 522, 254 S.W.2d 311 (1953), where several of our cases are...