Tucker v. Bankers Life & Cas. Co.

• Decision Date: 07 October 1965
• Docket Number: No. 37632,37632
• Citation: 67 Wn.2d 60,406 P.2d 628,23 A.L.R.3d 1098
• Parties: , 23 A.L.R.3d 1098 Clarence TUCKER, Respondent, v. BANKERS LIFE AND CASUALTY CO., Appellant.
• Court: Washington Supreme Court

Page 60

67 Wn.2d 60

406 P.2d 628, 23 A.L.R.3d 1098

Clarence TUCKER, Respondent, v. BANKERS LIFE AND CASUALTY CO., Appellant.

No. 37632.

Supreme Court of Washington, En Banc.

Oct. 7, 1965.

Leavy & Taber, James Leavy, Pasco, for appellant.

Horton & Wilkins, Hugh B. Horton, Kennewick, for respondent.

HUNTER, Judge.

This is an action by Clarence Tucker, plaintiff (respondent), against Bankers Life & Casualty Company, defendant (appellant), to recover total disability benefits under a Bankers Life accident-insurance policy purchased by the plaintiff.

The trial court awarded the plaintiff judgment for the maximum benefits afforded under the policy for total disability. The defendant appeals.

The defendant first contends that the trial court erred in finding that the plaintiff's injury was caused by an accidental fall, arguing that the fall resulted from a weakness of the plaintiff's back due to an osteoarthritic condition.

The record shows that the plaintiff was in the process of unloading a bulldozer cutter blade from a station wagon when he fell. The factual questions posed before the trial court were whether the plaintiff slipped and fell, causing the injury to his back, or whether his back 'gave way' from the weakened condition, causing the fall.

The evidence most favorable to the plaintiff on this issue is contained in exhibit 2, entitled, 'Claimant's Statement for Accident or Illness,' a form furnished by the defendant insurance company. The statement contained the following:

4. If accident, how did it occur? (answer by plaintiff) Unloading equipment Equipment slipped--caused fall & injury. (Italics ours.)

A subsequent form filed by the plaintiff (a part of exhibit 2) contained the following:

4. If accident, how did it occur? (answer) Co. has record on Previous claim--Back hurt--on job. (Italics ours.)

The plaintiff testified on cross-examination:

Q. On March 21st, as I understand the injury, nothing dropped or fell--you were merely picking up a 150 pound weight and suddenly felt a pain in the back, is that right? A. Well, I went down, with it. Q. I beg your pardon? A. I fell down, with it. Q. You fell down with the 150 pounds? A. Yes, I started to turn around to let it down, why I fell down with it. (Italics ours.)

The trial court had a right to believe the foregoing statements and testimony of the plaintiff, even though they appeared inconsistent with other testimony to the effect the plaintiff fell by reason of his back 'going out.' Mutti v. Boeing Aircraft Co., 25 Wash.2d 871, 877, 172 P.2d 249 (1946); Sawyer v. Department of Labor & Industries, 48 Wash.2d 761, 296 P.2d 706 (1956); Miller v. Treat, 57 Wash.2d 524, 358 P.2d 143 (1960). In Mutti v. Boeing Aircraft Co., supra, we said:

A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of the plaintiff's evidence and all inferences which reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to plaintiff. In the determination of such challenge or motion, Even though the plaintiff's evidence is in some respects unfavorable to him, he is not bound by the unfavorable portion of such evidence, but is entitled to have his case submitted to the jury on the basis of the evidence which is most favorable to his contention. Lindberg v. Steele, 5 Wash.2d 54, 104 P.2d 940. (Italics ours.)

Considering the evidence in a light most favorable to the plaintiff, the trial court, as trier of the fact, could have concluded that in removing the cutter blade from the station wagon there was an accidental slipping which caused the fall, resulting in the injury to the plaintiff's back.

The defendant argues that the plaintiff's pre-existing bodily infirmity of osteoarthritis constituted a concurring cause of the injury, if not the sole cause, and that recovery under the policy was thereby defeated since it provides no indemnity if loss results from '(a) bodily or mental infirmity, or (b) sickness or disease, * * *.'

In order for the trial court to find, under the facts of this case, that the plaintiff sustained an accidental injury, it was necessary for it to find that the plaintiff's back 'went out' by reason of the accidental slipping. The plaintiff's bodily infirmity was then a Condition and not a proximate cause of the injury. As stated in Graham v. Police & Firemen's Ins. Ass'n, 10 Wash.2d 288, 296, 116 P.2d 352, 355 (1941):

'The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction as the sole producing cause. In such case, disease and low vitality do not arise to the dignity of concurring causes, but, in having deprived nature of her normal power of resistance to attack, appear rather as the passive allies of the agencies set in motion by the injury.' Driskell v. United States Health & Acc. Ins. Co., 117 Mo.App. 362, 93 S.W. 880, 882.

The pre-existing infirmity therefore does not prevent recovery under the policy. Graham v. Police & Firemen's Ins. Ass'n, supra; 45 C.J.S. Insurance § 776.

The defendant further assigns error to the trial court's finding that the plaintiff was totally disabled, as defined under the terms of the policy.

The trial court found:

5. That since March 21, 1962, plaintiff has been totally disabled insofar as the intent and purpose of the policy of insurance is concerned, and has been unable from and after said date to perform any of his regular and customary duties or occupation and has received no remuneration in connection with his regular and customary occupation as the same existed at the time of the accident and had existed for many years prior thereto.

The policy provides benefits of $200 per month for total disability resulting from an accidental injury. Section 3 provides:

TOTAL DISABILITY: If benefits and premiums for this Section are specified in the Schedule on the last page hereof and if injuries, within twenty days from the date of the accident, shall wholly, necessarily, and continuously disable the Insured, and shall require regular care and attendance by a legally qualified physician or surgeon, other than himself, and shall prevent the Insured from performing each and every duty or function, of his regular and customary occupation and shall cause total loss of business time, the Company will pay monthly, during the period of such disability and such total loss of time, beginning with the first day after the elimination period, at the rate of the monthly indemnity set out in the Schedule for this Section but not to exceed twelve months as the result of any one accident. Thereafter, so long as the Insured, as the result of such injuries, shall require regular care and attendance by a legally qualified physician or surgeon, other than himself, and shall be prevented, due to such injuries, from performing each and every duty or function of any occupation and shall suffer total loss of business time, the Company will pay during the continuance of such disability at the rate of the monthly indemnity set out in the Schedule (for an additional 12 months).

The record shows that the plaintiff went to Dr. Kopper, a chiropractor, on the day of his injury, March 21, 1962. The plaintiff testified as follows: that Dr. Kopper told him not to work; that he first consulted Dr. Pettee, a physician and surgeon, on March 31, 1962; that from the date of his injury plaintiff's employer retained him on the payroll in a supervisory capacity during which period he performed none of his customary and usual duties of heavy duty mechanic and welder; that on June 18 he again consulted Dr. Pettee and was told to quit work, but continued working in a supervisory capacity until June 22 to permit his employer to secure a replacement.

The physician's statement, completed by Dr. Pettee on the form furnished by the defendant company, a part of exhibit 2 dated July 18, 1962, recites:

12. Dates patient was disabled from performing usual duties (answer) Totally from 6--22--62 to still disabled

A further statement of Dr. Pettee on a like form in exhibit 2, dated November 21, 1962, recites:

12. Dates patient was disabled from performing usual duties (answer) Totally from Aug 20, 1962 He will be unable to return to former occupation as bulldozer operator

The latter statement further recites:

9. Dates you treated patient for this condition (answer) 7--16--62 8--6--62 8--20--62 9--4--62 At office (answer) 9--17--62 10--8--62 10--26--62 from July 17 thru Nov 19th therapy at Our Lady of Lourdes Hospital At hospital 7--5--62 thru 7--11--62

There is testimony of the plaintiff which in some respects is conflicting with the foregoing evidence and testimony, in that the plaintiff testified that Dr. Pettee told him he could try welding where it involved no lifting. However, considering the above record in a light most favorable to the plaintiff, which the trier of fact was entitled to do, we believe that there is substantial evidence to support the trial court's findings that the plaintiff was totally disabled from performing the duties of his regular and customary occupation, thereby qualifying him for maximum benefits under the first 12-month period of the policy.

The defendant argues that the plaintiff cannot qualify for total disability benefits for the first three months while employed in a supervisory capacity.

The trial court found that the duties were not related to the performance of the duties of his regular and customary occupation. The record supported this finding.

The defendant contends that the requirement that the plaintiff suffer total loss of business time was intended by the parties to mean that the insured could recover benefits only if he were totally disabled from performing each and every duty or function of Any occupation. Relative to the first 12-month period we believe that the provision as to total loss of...