United States Fidelity & Guaranty Co. v. Hood.
| Decision Date | 01 January 1920 |
| Docket Number | 21478 |
| Parties | United States Fidelity & Guaranty Company v. Hood. |
| Court | Mississippi Supreme Court |
1 INSURANCE. Provision for autopsy construed against insurer demand and autopsy must be made before interment; knowledge of local agent binding on insurer.
The provision of an accident policy providing for an autopsy in case of death will be construed most strongly against the insurer and in favor of the insured; and such provision will be construed so as to require the demand and the operation to be made before interment. If the company desired to make an autopsy, it must arrange its affairs so as to secure the necessary information and make the demand and perform the operation before interment.
2 INSURANCE. Provision for autopsy after burial is void as against public policy.
A provision in an accident policy of insurance providing for an autopsy after the body has been buried is contrary to public policy and void.
3 WITNESSES. Privilege respecting testimony of physician not waived by calling other physicians; testimony should not be received in absence of jury.
Under section 3695, Code 1906 (Hemingway's Code, section 6380) a physician is incompetent to testify to facts which come to his knowledge by virtue of his being employed by his patient as a physician, and the patient does not waive the privilege because he introduces another physician who testifies for the patient about the same facts. It is improper practice in such case to permit the physician to testify at all about such facts even in the absence of the jury. The proper practice is to ascertain whether the facts were learned because of the relation, and, if so, to exclude the evidence.
4. INSURANCE. Accident is proximate cause of death resulting from accident accompanied by disease set in action by accident.
Where a provision of an accident insurance policy insures against "the effects resulting directly and exclusively of all other causes from bodily injury sustained during the life of this policy solely through accidental means," and an accident happens which sets in action a latent and inactive disease, and death results from the accident accompanied by the effects of such disease, the accident is the proximate cause of the death. To avoid the policy in case of an accident accompanied by disease, the disease must proximately contribute to the death.
On suggestion of error. Suggestion of error overruled. For former decision, see 86 So. 814.
Percy & Percy, for appellant.
The provision in the policy covering the right of the company to have an autopsy performed is plain and unambiguous. The appellee seeks to avoid the forfeiture of her rights under the policy arising from a violation of this condition upon the sole ground that in order to avail itself of this right, the company must demand such autopsy prior to the burial of the deceased. We have been unable to find any case in the United States enunciating this novel doctrine. There are cases avoiding the condition for divers reasons therein set out. In Root v. London Guaranty & Aco. Ins. Co., 72 N.E. 1150, where the company, on the day following assured's death the delay in making the application was held unreasonable. In Johnson v. Banker's Mut. Cas. Co., 151 N.W. 413, where the demand for an autopsy was made less than three hours before that set for burial, the court held it was not made at a reasonable time. In Mass. Bonding & Ins. Co. v. Duncan, 179 S.W. 472, it was held that a request to delay interment indefinitely does not avoid the policy for breach of the provision entitling the company to hold an autopsy, the request not being made for an autopsy but simply to delay the funeral. In Crotly v. Continental Cas. Co., 146 S.W. 833, where the policy provided that the insurer might perform an autopsy on the body, the fact that one was performed before notice to the company and that part of the spinal column was lost was held not a defense to an action on the policy. 7 Cooley, 3450.
In Mass. Bonding & Ins. Co. v. Duncan, supra, the court laid stress upon the fact that no evidence was shown that an examination of the body would disclose anything material to the case. There are a number of cases holding that the right to examine assured does not carry with it the right to perform an autopsy. But in the instant case the right to demand an autopsy is specifically granted, and if the demand is properly made, its refusal defeats any right of action in the policy. Johnson v. Banker's Mut. Cas. Co., 151 N.W. 143; Granger's Life Ins. Co. v. Brown, 57 Miss. 308; Wehle v. U. S. Mutual Acci. Assn., 60 Am. St. Rep., 598.
Was death caused by accident within the terms of the policy. The provision in the policy covering the liability of the company is as follows: The Insurance Clause. (1) The effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through accidental means. In Stanton v. Travelers Ins. Co., 78 A. 317, the court in construing a provision identical with the provision in the policy in this case, held it to be the consensus of opinion that if an injury and an existing bodily disease or infirmity concur and co-operate to produce death, no liability exists; that if death was not the result of accident alone, but was caused partly by the accident and partly by pre-existing bodily infirmity, there is no liability; that where assured died because the accident aggravated the effects of the disease or the disease aggravated the effects of the accident, death in such case would not be the result of accident alone, but would be caused partly by disease and partly by accident, the two acting concurrently, and no liability exists. National Masonic Acc. Assn. v. Shyrock, 73 F. 774; Commercial Traveler's Mut. Acc. Assn. v. Fulton, 79 F. 423; Hubbard v. Mutual Acc. Assn., 98 F. 930; White v. Standard Life & Acc. Ins. Co., 103 N.W. 735; New Amsterdam Cas. Co. v. Shields, 155 F. 54; Ill. Com. Assn. v. Parks, 179 F. 794; Binders v. National Mas. Assn., 102 N.W. 190; Tothman v. New Amsterdam Cas. Co. (Mich.), 152 N.W. 983; Maryland Cas. Co. v. Morrow, 213 F. 599; Crandall v. Continental Casualty Co., 179 Ill.App. 330; Penn v. Standard Life & Acc. Ins. Co., 73 S.E. 99; Aetna L. Ins. Co. v. Betherl, 13 S.W. 523; Penn v. Standard Life & Acc. Ins. Co., 73 S.E. 99.
The cases establish the principle that, if death results from disease or a bodily infirmity, there can be no recovery under such a policy, whether the insured suffered an accident or not and they also show that there can be no recovery if the insured sustained an accident, but at the time it happened was afflicted with a pre-existing disease, and if death would not have resulted if he had not had the disease, but his death was caused because the accident aggravated the effects of the disease or the disease aggravated the effects of the accident. Aetna Life Ins. Co. v. Ryan, 255 F. 483; Collins v. Casualty Co., 224 Mass. 327, 112 N.E. 634; Kellner v. Traveler's Ins. Co., Hartford, Conn., 181 P. 61; Cornelius on Accidental Means, page 100; Penn v. Standard L. & Acc. Ins. Co. (N. C.), 42 L. R. A. (N. S.) 593, 597; Crandall v. Continental Cas. Co. (Ill.), 179 Ill.App. 330; Nat. Assn. v. Scott, 155 F. 92; Stanton v. Travelers' Ins. Co. (Conn.), 34 L. R. A. (N. S.) 445; Stull v. U. S. Health & Acci. Assn. (Ky.), 115 S.W. 234; Thomas v. Fidelity & C. Co., (Md.), 67 A. 259; Ward v. Aetna L. Ins. Co. (Neb.), 118 N.W. 70, 123 N.W. 456, Continental Cas. Co. v. Peltier (Va.), 51 S.E. 209; Aetna L. Ins. Co. v. Bethel (Ky.), 131 S.W. 523; Reinheimer v. Aetna Life Ins. Co. (Ohio), 83 N.E. 491.
Nor is the question of proximate and immediate cause raised under the condition in the policy excluding injuries resulting solely from accidental means. White v. Standard L. & Acc. Ins. Co., 103 N.W. 735, 884; Carr v. Pac. Mutual Life Ins. Co. (Mo.), 75 S.W. 180; Penn v. Standard L. & A. Ins. Co., 42 L. R. A. (N. S.) 593; Rathman v. New Amsterdam Cas. Co. (Mich.), 152 N.W. 983.
Not only did the plaintiff fail to prove that death resulted through accidental means, but she affirmatively proved by her own witness that death was the result of the accident aggravating the pre-existing disease, and such pre-existing disease co-operating with the accident or the accident co-operating with such pre-existing disease, resulted in death. The burden is on the plaintiff to not only show that the assured suffered an accident, but that that accident was the sole cause of his death, and such death resulted from the accident independently of all other causes, and there can be no recovery unless the accident was the sole cause of his death independent of all other causes. Aetna L. Ins. Co. v. Ryan, 255 F. 483; Stanton v. Travelers Ins. Co., 78 A. 317; Ill. Com. Assn. v. Parks, 179 F. 794, 800; Nat. Masonic Acc. Assn. v. Shyrock, 73 F. 774, 776; 1 Corpus Juris, 496; National Assn. v. Scott, 155 F. 92; Commercial Travelers Mut. Acc. Assn. v. Fulton, 79 F. 423; Hubbard v. Mutual Acc. Assn., 98 F. 930; Hubbard v. Traveler's Ins. Co., 98 F. 932; Binder v. National Masonic Acc. Asso. (Iowa), 102 N.W. 190; White v. Standard Life & Acc. Ins. Co. (Minn.), 103 N.W. 735; Aetna Life Ins. Co. v. Dorney (Ohio), 67 N.E. 254; Penn v. Standard Life & Acc. Co. (N. C.), 73 S.E. 99; 76 S.E. 262; Maryland Casualty Co. v. Glass (Texas), 67 S.W. 1062; Rathman v. New Amsterdam Casualty Co. (Mich.), 152 N.W. 983.
There is a line of authorities holding that an insurance company is liable, if at the time of the accident the insured was afflicted with a latent or dormant disease which was affected by the injury and excited and aroused to rapid growth and assured would not have died when and as he did if the accident had not...
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