Union Central Life Ins. Co. v. Scott, 6 Div. 539

Citation286 Ala. 10,236 So.2d 328
Decision Date28 May 1970
Docket Number6 Div. 539
PartiesThe UNION CENTRAL LIFE INSURANCE COMPANY v. Mrs. Willie E. SCOTT.
CourtSupreme Court of Alabama

Spain, Gillon, Riley, Tate & Ansley and Foster Etheredge, Birmingham, for appellant.

No brief for appellee.

LAWSON, Justice.

The suit below was for payments allegedly due under a double indemnity provision in a life insurance contract.

The defendant insurance company, which is the appellant here, had issued a life insurance policy covering the life of Charles W. Scott. The policy was in the amount of $2,000 with a supplemental provision for double indemnity benefits for death by accident as defined in the policy. The policy provided that:

'The double indemnity benefit shall be payable only if the death of the insured shall result directly, independently and exclusively of all other causes, from bodily injury effected solely through accidental, external and violent means, and only if such death shall occur within ninety days after the date of such injury; provided that death occurring * * * as a result directly or indirectly of any bodily or mental disease or infirmity * * * is not an accident hereby insured against.'

The policy, issued in 1924, was in full force at the time of Mr. Scott's death on August 15, 1963, and the insurance company paid to the beneficiary, Mrs. Willie E. Scott, the widow of Charles W. Scott, the $2,000 called for in the face of the policy, but declined to make any payment under the double indemnity provision, taking the position that Mr. Scott's death resulted from encephalomalacia and cholesterosis, and not as a result of an accident. Thereafter, this suit was instituted by Mrs. Scott against the insurer, The Union Central Life Insurance Company, a corporation.

In the trial below, the jury returned a verdict in favor of the plaintiff and judgment was entered pursuant to such verdict.

The defendant's motion for a new trial being overruled, it appealed to this court.

We will refer hereinafter to the parties as plaintiff and defendant, just as they appeared in the court below.

Defendant insists that it was entitled to the general affirmative charge with hypothesis on the theory that 'the only testimony in the case, which stands uncontradicted and undisputed, is that a disease' directly or indirectly caused the death of Mr. Scott, the insured.

In construing clauses similar to the clause, 'The double indemnity benefit shall be payable only if the death of the insured shall result directly, independently and exclusively of all other causes, from bodily injury effected solely through accidental, external and violent means,' which clause appears in the policy with which we are presently concerned, we have held that if an accident aggravated a disease and hastened the death of the insured, the accident is yet considered the proximate cause of the insured's death, notwithstanding the gravity of the disease, or that the accidental injury would not have been fatal but for the infirmity.--First Nat. Bank of Birmingham v. Equitable Life Assur. Soc. of United States, 225 Ala. 586, 144 So. 451, and cases cited; Adkins v. Metropolitan Life Ins. Co., 235 Ala. 417, 179 So. 382; Liberty Nat. Life Ins. Co. v. Reid, 276 Ala. 25, 158 So.2d 667; Independent Life & Acc. Ins. Co. of Jacksonville, Fla., v. Maddox, 284 Ala. 532, 226 So.2d 315.

But the cases last cited lay down a different rule where the policy sued on not only contains a clause similar to that quoted in the preceding paragraph, which is sometimes referred to as the general clause, but also contains a clause similar to the following clause found in the policy here involved: '* * * provided that death occurring * * * as a result directly or indirectly of any bodily * * * infirmity * * * is not an accident hereby insured against.' The provisions last quoted are sometimes referred to as the additional clause. Where the policy contains the so-called additional clause, as well as the general clause, the cases last cited above indicate 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.

But in the Equitable case, supra, after stating the effect of the presence in the policy of the additional clause, we said:

'But this 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.'

In Liberty Nat. Life Ins. v. Reid, Supra, where the policy sued on contained an additional clause, we observed:

'If an injury starts a chain reaction resulting in death, recovery may be had even if one of the links in the chain is old age, frailty and some links are dormant diseases or physical condition without which the chain would be broken. Each case must be particularized. New York Life Insurance Co. v. McGehee, 5 Cir., 260 F.2d 768.' (276 Ala. 33, 158 So.2d 674)

In Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837, where the policy sued on also contained a so-called additional clause, we said on rehearing as follows:

'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 by death caused by disease or infirmity, which the accident itself did produce. (Authorities cited)

'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. 153, 148 So. 843)

In New York Life Ins. Co. v. McGehee, 5 Cir., 260 F.2d 768, the defendant insurance company took the position that at the time of the accident the insured had arteriosclerosis, among other conditions, which contributed to or caused his death. The policy sued on in that case contained both a general clause and the additional clause.

In Independent Life & Acc. Ins. Co. of Jacksonville, Fla., v. Maddox, Supra, we quoted approvingly the language hereafter set out from the opinion in New York Life Ins. Co. v. McGehee, Supra:

'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 is activated, and the effects of the injury intensified because of general frailty and lack of resistence 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. * * *' The rule in this state is that in civil cases the question must go to the jury if the evidence or the reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla, in support of the theory of the complaint.--Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, and cases cited; Payne v. Jones, 284 Ala. 196, 224 So.2d 230. And such is the rule if the scintilla of adverse evidence is developed by the cross-examination of any witness, thus presenting a jury question.--Jones v. Bell, 201 Ala. 336, 77 So. 998; Chestang v. Kirk,218 Ala. 176, 118 So. 330.

It is equally well established by our cases 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 come now to a summation of the evidence adduced at the trial below.

On August 15, 1963, Mr. Scott, the insured, was injured in an automobile accident on U.S. Highway 31 approximately 3.7 miles north of the city limits of Clanton in Chilton County, Alabama. Mr. Scott was driving a 1961 Falcon station wagon, which was hit in the rear by another automobile. The accident occurred in the main traveled portion of the highway. After the accident Mr. Scott was found lying on the shoulder of the highway. He was conscious and upon request he showed his driver's license to a state trooper who had arrived at the scene shortly after the accident. The trooper made no examination of Mr. Scott's person at the scene of the accident, but he called for an ambulance, which arrived within a short time. Mr. Scott was taken to a Clanton hospital in the ambulance. He was dead upon...

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