Williams v. General Accident Fire & Life Assur. Corporation, Limited, of Perth, Scotland

• Decision Date: 12 December 1936
• Docket Number: 33057.
• Citation: 62 P.2d 856,144 Kan. 755
• Parties: WILLIAMS v. GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.
• Court: Kansas Supreme Court

62 P.2d 856

144 Kan. 755

WILLIAMS v. GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

No. 33057.

Supreme Court of Kansas

December 12, 1936

Syllabus by the Court.

Where insured sustained accidental injury for which he was paid and from which he had fully or substantially recovered when he sustained second accidental injury, insurer held liable for effects caused by second injury under accident policy insuring against effects resulting directly and "exclusively of all other causes" from bodily injury by accident, since quoted words mean that, if accident is shown to be cause of injury for which action is brought insured can recover.

An accident policy insured against "the effects resulting directly and exclusively of all other causes ***" from bodily injury by accident. The assured sustained an accidental injury June 19, 1934, for which he was paid and from which he had fully, or substantially, recovered by March 9, 1935, when he sustained a second accidental injury. Held the insurer was liable for the effects caused by the second injury.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Murel L. Williams against the General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland. Judgment for plaintiff, and defendant appeals.

Austin M. Cowan, C. A. McCorkle, J. D. Fair, W. A. Kahrs, and Robert H. Nelson, all of Wichita, for appellant.

C. H Brooks, Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, Wayne Coulson, and Paul R. Kitch, all of Wichita, for appellee.

HARVEY Justice.

This was an action on an accident insurance policy. The jury answered special questions and returned a general verdict for plaintiff for $640, on which judgment was rendered. Defendant has appealed.

The principal question presented here is whether under the facts shown and the terms of the policy plaintiff is entitled to recover any sum. The policy was issued August 22, 1930, and kept in force by successive payments of premium. On June 19 1934, plaintiff sustained injuries to his left thigh and a sacroiliac sprain in an automobile accident. He was treated for these injuries at a hospital and at home, but was able to return to his work, that of a postal clerk, in August, 1934. For that injury defendant settled with him August 3, 1934. At the time he returned to work he had not fully recovered and used a cane. His condition continued to improve; he could do his work easier, and resumed most of his normal activities, among others attending shows and dances. In November, 1934, he went to a doctor because the pain in his left leg was not as well as he thought it should be. At that time he knew of no trouble in his back. Every few days, from November 17, 1934, until the latter part of the next February, the doctor gave him electric diathermic treatments to the back. The diathermy machine used is one which produces a rapidly oscillating current generating heat. The doctor also had him use a high corset made of heavy canvas, with steel stays, which went around his waist with straps over the shoulders, the lower portion being a sacroiliac belt, and he was instructed to sleep on a bed without springs. He was in the doctor's office as late as February 28, 1935, but was not examined or treated on that occasion. At an earlier examination that month the doctor found definite improvement, and noted on his record, "The pain does not radiate into his hip, knee or foot," but he occasionally had some little pain in the left sacroiliac area. The doctor testified that he "probably" had not fully recovered by the time of his second accident, for which recovery was sought in this action. Plaintiff had continued to wear the corset during the daytime until his second accident. Answering a special question, the jury found that at the time of his second accident plaintiff had fully recovered from the injuries sustained in June, 1934.

On March 9, 1935, while getting out of the bathtub, plaintiff slipped and fell in such a way that the "small" of his back struck the faucets of the tub, causing him serious injury. He was taken to a hospital, where an operation was performed upon the vertebrae of the back. He was in the hospital 10 days, then confined to his home 2 1/2 months, when he returned to his work at the post office, but was able to work but an hour or two a day when he would have to lie down, and was paid for the time he worked. Since there is no complaint here of the amount of the verdict if plaintiff is entitled to recover, we shall not further detail his injuries. In making his claim under the policy for that accident he was asked, and answered, among other questions, the following:

"Q. Are you now, or have you ever been, subject to or affected by any other injury or disease, deformity, infirmity or weakness? A. Yes, back weakened in first injury."

The policy sued upon contains this provision:

"This policy insures against--(1) the effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through external, violent and accidental means. ***"

Appellant contends that under correct rules of law applied to the evidence in this case the second accident, exclusively of all other causes, did not create the disability for which this action was brought. Appellant contends the evidence clearly shows plaintiff's back had been weakened by the former accidental injury, that he had been treated for this to within a few days of the second injury, and at that time was still wearing, during the daytime, the sacroiliac belt and corset; and it is argued the answer that he had fully recovered from the first injury when he sustained the second, returned by the jury to a special question, should have been set aside on its motion as being contrary to the evidence.

The legal question raised is the interpretation to be given to the language of the policy, "exclusively of all other causes." On this there are two lines of authorities. One line of authorities, upon which appellant relies, construes the language used in the policy to mean that, if the insured had any disease or physical ailment, from any cause, at the time of the accidental injury for which he seeks to recover under the policy, and is unable to show clearly that such disease or ailment was not reflected in some degree in the injurious results of the accident, there can be no recovery under the policy. Under these authorities it is practically impossible for any but the physically sound to recover on an accident policy containing the language used, or tantamount to that used,...