United States Fidelity & Guaranty Co. v. Hood

• Decision Date: 21 February 1921
• Docket Number: 21478
• Citation: 87 So. 115,124 Miss. 548
• Court: Mississippi Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. HOOD

87 So. 115

124 Miss. 548

UNITED STATES FIDELITY & GUARANTY COMPANY v. HOOD

No. 21478

Supreme Court of Mississippi

February 21, 1921

October 1920

On suggestion of error.Suggestion of error overruled.For former decision, see86 So. 814.

Error overruled.

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 & Acc. 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. Asso., 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 occurred, then the company is liable, such death being a death from accident.Such is the holding in.Fidelity & C. Co. v. Meyers(Ark.), 152 S.W. 995;Fetter v. Fidelity & C. Co.(Mo.), 73 S.W. 592;Moon v. Order of U. C. Travellers(Neb.), 146 N.W. 1037.

But we submit the courts laying down this doctrine are in the minority, the vast majority of the courts of the United States following the general rule as hereinbefore set out.

Error in excluding the testimony of Dr. J. D. Smythe.In the case of Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143, the court in construing section 3695 of the Code of 1906, held that all communications received by a physician in attendance on his patient were privileged, and even though the matter to be testified to by the physician was made the basis if a claim for damages, that such suit did not amount to a waiver of the privilege; at least this is the effect of the decision.With all due respects to the court, bringing of an action in which an essential part of the issue is the existence of physical ailment should be a waiver of the privilege for all communications concerning that ailment.The whole reason for the privilege is the patient's supposed unwillingness that the ailment should not be disclosed to the world at large; hence the bringing of a suit in which the very declaration and much more, the proof, discloses the ailment to the world at large, is of itself an indication that the supposed repugnancy to disclose does not exist.If the privilege means anything at all in its origin, it means this as a sequel.4 Wigmore on evidence, sec. 2389.

We do not rely upon an overruling of the doctrine in the Messina case to support our contention that the lower court erred in excluding Dr. Smythe's testimony for our court has limited and restricted the doctrine in the Messina case beyond the instant case.In the case of Sovereign Camp, etc v. Farmer, 77 So. 655, our court held that the privilege could be waived either before or at the trial.And in Hamel v. So. Ry. Co.74 So. 276, the court said, in holding that an objection to the testimony of a physician should have been sustained, though the plaintiff placed another physician on the stand in rebuttal, counsel fo...