United Ins. Co. of America v. Ray

• Decision Date: 01 December 1960
• Docket Number: 2 Div. 415
• Citation: 271 Ala. 543,125 So.2d 704
• Court: Alabama Supreme Court
• Parties: UNITED INSURANCE COMPANY OF AMERICA v. Morlan M. RAY.

Page 704

125 So.2d 704

271 Ala. 543

UNITED INSURANCE COMPANY OF AMERICA v. Morlan M. RAY.

2 Div. 415.

Supreme Court of Alabama.

Dec. 1, 1960.

Rehearing Denied Jan. 12, 1961.

Dominick & Roberts, Tuscaloosa, and G. E. Sledge, Greensboro, for appellant.

LeMaistre, Clement & Gewin, Walter P. Gewin and Perry Hubbard, Tuscaloosa, for appellee.

MERRILL, Justice.

Appellee Ray sued appellant for total disability benefits for an alleged accidental injury under a policy of insurance. The cause was tried without a jury and the court rendered judgment in favor of appellee for $1,800 as disability benefits of $300 per month for a period of six months. Appellant's motion for a new trial was overruled.

Appellant's pleadings were in short by consent, the general issue, no accidental injury, plaintiff not totally disabled, misrepresentations made by plaintiff in application for the policy which materially affected the loss, misrepresentations in the application with intent to deceive and misrepresentations in the application for the policy sued on.

The policy insured appellee against accidental injury in words as follows:

'Against loss of life, limb, sight or time resulting directly and independently of all other causes from accidental bodily injury sustained while this policy is in force, hereinafter called 'such injury."

The applicable provision of the policy reads:

'If 'such injury' * * * causes continuous total disability and total loss of time within twenty days from the date of the accident and requires regular and personal attendance by a licensed physician, surgeon, osteopath or chiropractor, other than the insured, the company will pay at the rate of the monthly benefit stated in the policy schedule for one day or more from the first medical treatment so long as the insured lives and is so disabled.'

The monthly benefit payment for such total disability was $300.

The policy is dated January 15, 1957, and on the following April 20th, appellee went fishing with a friend and found a tree limb across his boat. He first tried to pull the limb away while standing on the tree, which had fallen near the boat. He tried to break the limb off the tree but was unable to do so. He then jumped back on the bank, slid down the bank six or eight feet to get in the boat in order to move the limb. While standing in the boat with his feet about twelve inches lower than the limb, he reached over for the limb and while bent over, something snapped in his back. It was discovered he had suffered a crushed vertebra, caused by a fracture of the fifth lumbar vertebra.

Appellee is a small man, five feet six and one-half inches in height. He weighed one hundred forty-five pounds and his waist measured thirty-two inches at the time of the injury.

Appellant's first assignment of error is concerned with the overruling of the motion for a new trial, two grounds of which raise the question of whether there was an accidental bodily injury within the terms of the policy. Appellant argues that there was no accident involved in anything insured did, but that his trouble arose from a diseased vertebra.

Medical testimony introduced by appellant supports his contention, but medical testimony of appellee's doctors conflicts with this contention.

It is an accidental injury where an unexpected result arises from an intended or voluntary act. In Emergency Aid Ins. Co. v. Dobbs, 263 Ala. 594, 83 So.2d 335, 338, we said:

'* * * There is a distinction between an accidental death or injury, and one caused by accidental means. Such a distinction is treated by the law writers. It is an accidental death or injury if the result is an accident whether or not due to accidental means; but it is caused by accidental means, although the means employed were voluntarily rendered, if, in the act preceding the injury, something unforeseen, unusual and unexpected occurs which produces the result. * * *'

Here the pulling at the limb, jumping from tree to bank, sliding down the bank and reaching over to remove the limb were, for the most part, voluntary acts, and the fracture of the vertebra was an unexpected result.

Assuming without conceding that the vertebra was diseased, we think the facts in the instant case made a question for the trier of facts to determine. In First National Bank of Birmingham v. Equitable Life Assur. Society, 225 Ala. 586, 144 So. 451, 452, it was said 'In dealing with accident policies whose coverage is defined by the general terms, such as death resulting directly and solely from the accidental injury, exclusive or independent of all other causes, this court has approved and adopted the rule announced by other courts to the following effect: '* * * Where accidental injury aggravated a disease and hastened death so as to cause it to occur at an earlier period than it would have occurred but for the accident, it is the direct, independent, and exclusive cause of death at the time.' Benefit Ass'n of Ry. Employees v. Armbruster, 217 Ala. 282, 284, 116 So. 164, 166.'

Thus, the injury being accidental, it may have caused the diseased vertebra to collapse before it ordinarily would, but the result would still be within the provisions of the policy.

Appellant next argues that there was no total disability. This argument is based upon evidence that appellee later resumed his work as a builder or building contractor.

In Wilkey v. Aetna Life Ins. Co., 269 Ala. 308, 112 So.2d 458, 460, we quoted from Metropolitan Life Ins. Co. v. Alston, 248 Ala. 671, 29 So.2d 233, as follows:

"Our cases applying total disability clauses similar in material respects to that now under consideration have held that they mean that such total disability exists when, and only when, the insured cannot substantially perform the material duties of some occupation for which he is qualified by experience and training. (Citing cases)."

There was ample evidence that the insured could not substantially perform the material duties for which he is qualified by experience and training. One of his doctors testified that he was totally disabled. Furthermore, there is no evidence that appellee did any work in his occupation during the six months period in which it is claimed that the total disability occurred.

Finally, on this point, appellee was permitted to demonstrate to the court how he walked since the accident. This evidence was before the trier of fact, but, of course, is not before us.

Where it is apparent from the record that the trial court had before it evidence omitted from the record, it will be conclusively presumed that such evidence would sustain the trial court's findings. Local No. 157, etc. v. Local No. 4202, 266 Ala. 354, 96 So.2d 297; Williams v. Clark, 263 Ala. 228, 82 So.2d 295. This rule is applicable here only to this particular question, not to the others raised by different assignments of error.

The remaining assignments of error are concerned with the alleged material misrepresentations in the application. Question 11, of the application and the answer thereto are as follows:

'11. Have you received medical or surgical advice or treatment or had any local constitutional disease within the past five years? Yes. When? _____ For what? Physical--3 mos....