Thomas v. Fidelity & Casualty Co. of New York

• Decision Date: 26 June 1907
• Citation: 67 A. 259,106 Md. 299
• Parties: THOMAS v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Maryland Court of Appeals

67 A. 259

106 Md. 299

THOMAS v. FIDELITY & CASUALTY CO. OF NEW YORK.

Court of Appeals of Maryland

June 26, 1907

Appeal from Court of Common Pleas; Henry D. Harlan, Judge.

Action by Isabella Thomas against the Fidelity & Casualty Company of New York. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.

Clarence Tucker and Joseph N. Ulman, for appellant.

Charles Markell, Jr., and Vernon Cook, for appellee.

BRISCOE J.

This is a suit at law, brought by the appellant against the appellee to recover on an accident insurance policy issued by the appellee company on the life of the appellant's husband as beneficiary under the policy. The declaration contains the usual money counts and a special count. The special count avers that the defendant, by its policy of insurance, dated the 18th day of November, 1904, did insure David W. Thomas for the period of one year against death resulting, directly and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means agreeing that if death should result within 90 days from the injuries the defendant would pay the beneficiary in the policy named, who is the plaintiff in this action, if surviving, the sum of $10,000; and that on or about the 14th day of December, 1904. David W. Thomas was injured by an accident, which caused his death, on or about the 31st day of January, 1905. The defense on the part of the company is that the death of the insured did not result, directly or independently of all other causes, from bodily injuries sustained through external, violent, or accidental means, but on the contrary resulted from diseases in no way caused by external, violent, or accidental means. The judgment was in favor of the defendant, and the plaintiff has appealed.

At the trial of the case the plaintiff reserved nine exceptions eight of them being to the admissibility of evidence, and the ninth to the granting of the defendant's second prayer. This prayer was granted at the conclusion of the plaintiff's case, and is as follows: The defendant prays the court to instruct the jury that it appears from the uncontradicted evidence that the death of the deceased did not result, directly and independently of all other causes from bodily injuries sustained through external, violent, and accidental means, and therefore, under the pleadings, their verdict must be for the defendant. The prayer being in the nature of a demurrer, it becomes necessary for us to examine the evidence upon which it was based. The policy, which is conceded to be a Maryland contract, is dated October 18, 1904, and provides that the Fidelity & Casualty Company of New York (herein called the "Company"), in consideration of the premium and of the statements in the schedule of warranties hereinafter contained, which statements the assured makes on the acceptance of this policy and warrants to be true, does hereby insure the person named and described in said schedule (and herein called the "Assured") for the period of one year from noon, standard time, of the day this contract is dated (1) against disability or death resulting, directly and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means (suicide, sane, or insane, not included); and (2) against disability from illness, as hereinafter defined.

The undisputed facts are that the insured, David W. Thomas, on the 17th of December, 1904, while walking upon W. Saratoga street, in the city of Baltimore, slipped and fell upon the pavement and injured his ankle. There was snow and ice on the pavement at the place of the accident, and his fall is alleged to be due to this condition of the street. He returned shortly after the fall to the Young Men's Republican Club, where he had left a number of friends to go to the Hotel Rennert, and complained of suffering considerable pain in his right leg. Dr. Chambers subsequently diagnosed the injury as a fracture of the fibula, the small outer bone of the ankle. He died on January 31, 1905. The insured was a man of 64 years of age, and at the time of his death the fracture of the ankle had completely healed. Dr. Chambers, who treated him continuously from the date of the accident, December 17, 1904, until his death, on January 31, 1905, in the proofs of loss submitted to the appellee, gave as the cause of death: "The primary cause due to the injury and consequent shock, due to the fall; contributory, encephalo meningitis; immediate cause, lung congestion." He testified that encephalo meningitis was a disease. It is an old form or some form of change in the meninges that covers the brain; changes going on in the brain surface. It is an affection of the brain covering. It means a degeneration. In answer to the following questions, he said: "Q. Doctor, you don't mean to say all men of 64 have encephalo meningitis? A. I don't mean all men under or over 64 that die, die from encephalo meningitis. That is one of the things you can die from, and, in my judgment, that is one of the things he did die from. Q. Isn't that the principal one? A. That was the most aggravating factor. The final congestion of his lung was the immediate cause. Q. Did you think the encephalo meningitis was the primary cause? A. I think that was a contributing cause. Q. When you filled out the certificate to the health department you gave encephalo meningitis as the cause of death? A. Yes. Q. That is a disease, is it not? A. Yes." The proof further shows that at the time of the accident the insured was suffering from a disease called "arterio sclerosis," which is a diseased condition of the arteries. Dr. Chambers testified he had more or less marked arterio sclerosis. He also testified: "Q. Doctor, an injury to the ankle of the kind that Col. Thomas had couldn't, of course, have produced arterio sclerosis in a man who didn't have it, could it? A. Oh, no. It would only be a dangerous factor in a man suffering under those conditions. Q. Then Doctor, wouldn't you say arterio sclerosis was one of the contributing causes that brought about his death? A. I think if his arteries had been perfectly good, it...