United States Casualty Co. of New York v. Malone

• Decision Date: 18 April 1921
• Docket Number: 21725
• Citation: 126 Miss. 73,87 So. 896
• Court: Mississippi Supreme Court
• Parties: UNITED STATES CASUALTY CO. OF NEW YORK v. MALONE

87 So. 896

126 Miss. 73

UNITED STATES CASUALTY CO. OF NEW YORK v. MALONE

No. 21725

Supreme Court of Mississippi

April 18, 1921

INSURANCE. Where policy provides against injury through external violent, and accidental means, plaintiff must prove that injury was so caused.

Where an insurance policy provides that the insurance is against "injury effected solely through external, violent, and accidental means," the plaintiff or complainant must prove to a reasonable certainty that the death or injury was so caused. It is not sufficient to prove a declaration made by the deceased to his physician that his injury was so caused. There must be affirmative proof as to how the injury occurred, and the proof must show it was accidental and caused through accidental means.

HON. R W. CUTRER, Chancellor.

APPEAL from chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Action by Mrs. Effie D. Malone against the United States Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

Reed Brandon and Bowman, for appellant.

Counsel for appellee insists that the testimony of Dr. W. W. Smithson was admissible and they quote several passages from Vol. 22, of Corpus Juris, in which they undertake to show that the statements to a physician are competent, but the law cited by them does not cover such narrative statements as were made to Dr. Smithson by Malone, but refer to outcries or other outward evidence of said suffering, etc.; had counsel looked a little more carefully he would have found the following statement in the volume from which he quoted:

"Statements of a narrative nature as to the cause, attendant circumstances, or effect of the sickness, or injuries, or the manner in which, or the time at which, an injury was inflicted. Or the nature or former symptoms, or past suffering of the person, or in general, as to bodily condition at another time are incompetent; especially, in case of injury, where at the time of the statement the patient has been removed from the scene of the accident. Even statements to a physician, which are of a purely narrative nature, are excluded. We therefore submit that a narrative statement of Mr. Malone to Dr. Smithson in which he told him that he thought he had rubbed his toe with a bath towel, was clearly inadmissible and incompetent. This statement of Malone's, as meagre and indefinite as it may be, is absolutely the only evidence upon which appellee can base a claim under this policy.

In referring to the numerous cases cited by us in our original brief wherein we showed that recovery could not be had when the loss resulted wholly or in part, directly or indirectly from disease, counsel for appellee make this statement on page 35 of their brief:

"Examination of these cases discloses the fact that a somewhat different contract was involved and we think the distinction between the provisions of the contract is controlling. There the contracts contained an additional provision that the insurance did not cover any death which resulted wholly or in part, directly or indirectly from disease or bodily infirmity."

We are at a loss to understand how counsel for appellee can claim that this very clause is not contained in the policy now in question, as provision D. on the last page of said policy reads in part as follows:

"This policy does not extend to nor cover loss or injury resulting from or contributed to directly or indirectly, wholly or partly by disease."

We therefore submit that the cases relied upon in our original brief were directly in point and that the policy here sued on comes exactly within the line of these decisions.

We further submit that the numerous decisions cited and relied upon by counsel for appellee are not in point but refer to cases very much different from the one at issue. Most of the cases cited by them deal with a situation where the plaintiff was killed or injured through accidental means but was at the time frail in body or suffering from some sickness or disease; or with cases in which the plaintiff suffered some illness following an accident.

For example a man might be in the last stages of diabetes and be run over by an automobile and killed as a result thereof in which case there would certainly be liability under an accident policy. He might even have diabetic gangrene upon his toes and disease be so far advanced as to produce death within a few days and if he was run over and killed by an automobile there could certainly be a recovery; but if he was suffering from diabetic gangrene and sustained a broken arm through an accidental bodily injury there would be no recovery if the insured died of diabetic gangrene and not as a result of a broken arm. We do not contend that the insured cannot recover under an accident policy if he is suffering from some disease. He might be suffering from every disease that flesh is heir to and yet a recovery could be had if the insured came to his death by an accident independent of the disease; but we do contend that if disease contributed directly or indirectly, in whole or in part to the loss, then there can be no recovery . . . Or a man might sustain an accidental injury and as a result thereof contract pneumonia and die therefrom in which case there could certainly be a recovery under the policy. An examination will show that most of the cases relied upon by counsel for appellee deal with situations similar to the above or with other conditions just as foreign to the issues here involved. We concede that the Myer's case decided by an Arkansas court is rather in line with the contention of counsel for appellee but as is shown by Mr. Cornelius and discussed in our original brief, the Arkansas court seems to have...