Miles v. Continental Cas. Co., 3151

• Citation: 386 P.2d 720
• Decision Date: 19 November 1963
• Docket Number: No. 3151,3151
• Parties: Nellie Kerr MILES, Appellant (Plaintiff below), v. CONTINENTAL CASUALTY COMPANY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 720

386 P.2d 720

Nellie Kerr MILES, Appellant (Plaintiff below), v. CONTINENTAL CASUALTY COMPANY, Appellee (Defendant below).

No. 3151.

Supreme Court of Wyoming.

Nov. 19, 1963.

Marvin L. Bishop and Bishop & Bishop, Casper, for appellant.

Edward E. Murane and Murane, Bostwick, McDaniel & Scott, Casper, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff, Nellie Kerr Miles, brought action to recover for the alleged accidental death of her late husband, James Noah Miles, to whom defendant had issued a group disability policy. The policy, in form, may be classified as a 'Health and Accident Policy' and among other things provided payment of $5,000 for death from 'bodily injury caused by accident' and 'resulting directly and independently of all other causes in loss covered by this policy.' Disability from sickness or disease was also a covered loss. At the trial the jury rendered a verdict for plaintiff but on post-motion the verdict was set aside, judgment was entered for defendant, and plaintiff appeals.

The respective contentions of the parties, briefly stated, present the ultimate question of whether or not, under the circumstances of this case, the cancerous condition of the bone fractured as the result of an accident was a cause excluding the death loss from the coverage of the policy.

There is evidence that the insured, prior to the accident, was a large, robust man, 59 years of age, actively engaged in carrying on a substantial ranching operation and was so engaged on the day of the accident, January 30, 1960. On the morning of that day, while assisting his son in unloading and moving a cow sprayer weighing some 115 pounds, he tripped and fell backward, with the result that the sprayer fell across his left leg and fractured the femur. He was taken to a hospital at Casper, Wyoming, arriving there about 7:00 p. m. Dr. Whiston, an orthopedic surgeon, was placed in charge and the doctor found that insured was suffering extreme pain in the midportion of his left thigh and the thigh itself was badly swollen. X rays were taken and it was discovered that cancer was present in some five inches of the left femur, with an irregular, transverse fracture line running through the affected area. The fracture was identified as a pathological fracture, meaning a fracture through a diseased portion of bone. On February 9, 1960, an X ray was taken of the lungs of insured by a portable machine, and while the X ray was not entirely satisfactory for diagnostic purposes, Dr. Whiston, who also made a clinical examination, and Dr. Jacobson, a radiologist, both said there was no evidence of gross or massive tumor tissue in the lungs at that time. On February 12, 1960, insured was taken to the Mayo Clinic where, in an effort to stop the spread of cancer, the left leg was amputated midway between the knee and hip. Upon return to Casper, Wyoming, insured was placed under the care of Dr. Durham and remained under his care until the time of death, May 4, 1960.

The death certificate, signed by Dr. Durham, gave (a) 'Respiratory Failure' as the immediate cause (duration one week) due to (b) Metastatic Osteogenic Sarcoma (duration three months), due to (c) Osteogenic Sarcoma Femur (duration four-five months?). In lay language this means that cancer was in the left femur for a period of four to five months; that cancer cells were elsewhere in the body for three months; and that eventually the lungs filled to the point where insured was getting no air in the lungs, which was the immediate cause of death.

Again turning to the medical testimony, no purpose would seem to be served by setting it forth at length for the reason that under any reasonable view no real conflict appears. Such evidence discloses that cancer was present in the left femur at the time of fracture and had been there for some time; that it was probably metastatic, which meant that it was transplanted from some other place in the body to the femur and was therefore not trauma-induced; that observable deterioration of the bone was in progress at the time of fracture, although the fracture would not have occurred when it did without the trauma; that the cancer was not dormant and would have caused death irrespective of the fracture; that the fracture accelerated death by increasing the growth and the spread of the cancer to other parts of the body, probably by cells breaking loose into the bloodstream and passing through the heart and the lungs; that the fracture was a substantial contributing cause of death but the cancer was also a substantial contributing cause rather than a remote cause; and that the fracture of the left femur of the insured would not have caused death directly and independently of the cancer.

In view of all of the foregoing, was the trial court warranted, as a matter of law, in entering judgment for the defendant, notwithstanding the verdict for the plaintiff? We think so.

The effect of a pre-existing disease or infirmity on recovery under a policy covering loss for bodily injury caused by accident and 'resulting directly and independently of all other causes,' or containing provisions of similar import, has been the source of much litigation. The variety of approaches and the divergence in view in meeting the problem are well illustrated by the most recent Annotation in 84 A.L.R.2d 169-317. From this vast array of authority some general principles of rather wide acceptance are laid down, but in final analysis the end result, in a large measure, is dependent on the facts of the particular case. For such reason and for the further reason that we are not without guideposts from our own previous decisions adequate to dispose of the question before us, we undertake no general analysis of the authorities.

In Equitable Life Assur. Soc. of United States v. Gratiot, 45 Wyo. 1, 14 P.2d 438, 82 A.L.R. 1397, we dealt with the effect of an existing 'aneurysm' in an artery (described as a bulge which weakens it) which ruptured at that point following an accident, with death resulting from a cerebral hemorrhage. There was evidence that the infirmity was 'dormant' or 'latent' and the medical testimony of its causal connection with the death was in conflict. Judgment for plaintiff was affirmed and in the course of the opinion many cases dealing with the general subject matter were analyzed and discussed. Judge Blume, author of the opinion, then pointed out: (a) That a policy of insurance should not be so strictly construed as to thwart the general object of the insurance, and provision for loss by accident would not be construed to apply only in case the insured was in perfect health at the time of the accident. (b) That in considering the problem, the difference between proximate cause on the one hand and remote cause or a condition on the other, as recognized in law, cannot be overlooked and even though a disease, bodily infirmity, or predisposing cause exists at the time of accident, it will not defeat recovery unless it is a proximate cause rather than a remote cause or condition. (c) A dormant or latent disease or infirmity which could not reasonably be expected to endanger a normal life span, absent some independent cause such as trauma, is a remote cause or condition that cannot reasonably be said to be a proximate cause. (d) It is sometimes difficult to determine whether an existing factor should be considered as a condition or remote cause rather than a proximate cause, and in case of doubt the question must be left to the jury.

We add to the foregoing the precepts laid down in Bankers Life Co. v. Nelson, 56 Wyo. 243, 108 P.2d 584, 588, 589, rehearing denied 56 Wyo. 513, 111 P.2d 136. The case dealt with the existing thinness of a heart wall and a potential hernia. It was there said:

'This court has already decided that latent or dormant bodily weakness in itself,...