Valente v. Commercial Ins. Co. of Newark, N. J., 1082

• Decision Date: 03 October 1967
• Docket Number: No. 1082,1082
• Citation: 126 Vt. 455,236 A.2d 241
• Parties: Louis J. VALENTE, Guardian unto Anna Salengo v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY.
• Court: Vermont Supreme Court

Page 241

236 A.2d 241

126 Vt. 455

Louis J. VALENTE, Guardian unto Anna Salengo v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY.

No. 1082.

Supreme Court of Vermont.

Oct. 3, 1967.

Motion for Reargument Denied Nov. 21, 1967.

Ryan, Smith & Carbine, Rutland, for plaintiff.

Webber & Costello, Rutland, for defendant.

Before HOLDEN C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

Plaintiff, Anna, Salengo, is the named beneficiary in an accident insurance policy issued to her deceased husband, John J. Salengo, on April 16, 1956, by the Metropolitan Casualty Insurance Company of New York. The liabilities on policies issued by this company were contractually assumed by the defendant.

Plaintiff's suit is brought to recover $2,000., the face of the policy, under the claim that Mr. Salengo died on November 15, 1963 as a result of accidental bodily injury suffered on August 8, 1963. Jury trial resulted in a verdict and judgment for the plaintiff.

The case is here on defendant's exceptions to the denial of its motions for a directed verdict and for judgment notwithstanding the verdict. The sole question for review raised by these motions is the sufficiency of the evidence to establish that Mr. Salengo's death resulted from accidental bodily injury, directly and independently of all other causes, as provided by the policy. The defendant claims the plaintiff failed to sustain her burden of proof on this issue as was incumbent upon her. Reynolds v. John Hancock L. Ins. Co., 117 Vt. 541, 544, 97 A.2d 121.

In passing upon the motion for a directed verdict the evidence must be taken in the light most favorable to the plaintiff and the effect of modifying evidence is to be excluded. If there is any credible evidence fairly and reasonably tending to support the plaintiff's claim, the question is for the jury and the motion cannot properly be granted. Cheney v. Wheeler, 122 Vt. 295, 297, 170 A.2d 642.

Contradictions and contradictory inferences are for the jury to resolve. The tendency of the evidence and not its weight is to be considered. Campbell v. Howard National Bank, 118 Vt. 182, 183, 103 A.2d 96. All conflicts are to be resolved against the excepting party, Stanley & Sons, Inc. v. Roy, 125 Vt. 136, 138, 211 A.2d 243, and all intendments are in favor the verdict below. Harte v. Peerless Ins. Co., 123 Vt. 120, 124, 183 A.2d 223.

Defendant's motion for judgment notwithstanding the verdict, as applied to the evidence, is tantamount to a motion for a directed verdict, it is to be passed upon in the same way. Merrill v. Reed, 123 Vt. 248, 253, 185 A.2d 737.

The insurance policy with which we are here concerned insured the plaintiff 'against-(1) loss or disability resulting directly and independently of all other causes, from accidental Bodily injury * * *.' The plaintiff necessarily relies upon this clause for recovery.

It is pointed out that the policy contains no specific exceptions, or negative provisions. The coverage is expressed solely by the language used in the insuring clause above quoted. The insurance company defined in carefully chosen words the loss against which it insured the decedent.

The defendant cites Rodia v. Metropolitan Life Ins. Co., 354 Pa. 313, 47 A.2d 152 as a case closely in point with the case at bar. The policy involved in that case contained a clause which excluded coverage for death caused wholly or partly, directly or indirectly, by disease. The evidence established that the insured's death was caused wholly or partly by bodily infirmity from which he had been suffering prior to his fall. The court held that this precluded recovery under the accident policy. That case is thus distinguished from the case at bar and it has no application here.

The defendant argues that there was no evidence that the injury sustained by the deceased was the 'sole' and direct cause of his death. In urging the injury must be the 'sole' cause, the defendant apparently takes the position that if other causes of death are present, not directly related to the accidental injuries, there can be no recovery. The use of the words 'sole cause' is foreign to the language of the insurance agreement. A reading of the record indicates that they came into the case only be way of the court's charge. And to this the plaintiff saved an exception. This aspect of the charge gave the defendant more than it was entitled to under the policy. We do not agree with this restrictive construction of the insuring clause.

It is a fundamental rule that a policy of insurance must be construed liberally in respect to the person insured and strictly with respect to the insurer. Corsones, Admr. v. Monarch Acc. Ins. Co., 103 Vt. 379, 381, 154 A. 693.

The clause 'resulting directly and independently of all other causes' means 'the efficient, or, as some courts speak of it, the predominant, cause of death.' Foulkrod v. Standard Acc. Ins. Co., 343 Pa. 505, 23 A.2d 430, 433. Appleman Insurance Law, Vol. 1A, § 392, p. 40.

In Browning v. Equitable Life Assur. Soc. of United States, 94 Utah 532, 72 P.2d 1060, 1076, the court said the words mean 'sole and proximate cause.' In Kelley v. Pittsburg Casualty Co., 256 Pa. 1, 100 A. 494, 495, it was held that phrase 'means proximate cause.' The words 'directly' and 'proximately' were construed to be synonymous in Fineberg v. Lincoln-Phelps Apt. Co., 55 Ohio App. 402, 9 N.E.2d 1011, 1015. So also in Budzinski v. Metropolitan Life Ins. Co., 287 Mich. 495, 283 N.W. 662, 666, 286 N.W. 842, the court held recovery may be had if the accident was the efficient, dominant, proximate cause of death. The court said in Landis v. Pioneer Mutual Casualty Co., 116 Ohio App. 309, 187 N.E.2d 604, 606, that there must be be an intervening cause of death completely separate from the accident. And in Corsones, Admr. v. Monarch Acc. Ins. Co., supra, this court said that decedent's 'death was attributable to the accident and not to the hernia, which was not a new and independent cause of death, but merely a link in the chain of causation between the accident and the death.'

For many years prior to August 8, 1963, the insured, John J. Salengo, operated a grocery store in West Rutland, Vermont. He worked long hours and had bery little help. He had made no complaints of illness either to any members of his family or to his friends and business acquaintances. He appeared to them to be in good health. He had no history of past injuries or sickness except one time he was treated by doctor when he stepped on a nail.

On August 8, 1963, about noon, the decedent fell some four to six feet to the ground from a platform in the rear of his store. He suffered a contusion on the left side of his head and upper chest, a broken rib and an injury to his left shoulder. Mrs. Salengo discovered her husband lying on the ground unconscious and had him taken to the Rutland Hospital. He was admitted at 12:20 P.M. Shortly after 1 P.M. he sustained convulsive seizures one being fairly severe.

Several hours later that day he was transferred to the Mary Fletcher Hospital in Burlington. On August 14 an angiogram test was conducted on Mr. Salengo at the Mary Fletcher Hospital. This indicated a place in the neck where there was some other substance than the blood vessel wall itself that was taking up space, that is, the column of blood going by in one region was narrow.

Mr. Salengo returned home on August 18 but was readmitted to the Mary Fletcher Hospital on November 7, 1963. A second angiogram taken on November 8 showed a plaquing of the bifurcation of the internal carotid artery which supplies blood to the left side of the brain. This indicated the process had extended and part of the brain was losing some circulation.

Dr. Wallman, defendant's witness, testified that arteriosclerosis was present before Mr. Salengo's fall. The injuries to Mr. Salengo indicated to him a rather forceful blow resulted from the fall. This condition of arteriosclerosis became progressively worse in the subsequent months after the fall and his condition was very much worse on November 8 than on August 14. The witness agreed that Mr. Salengo went into 'a down hill...