United States Fidelity & Guaranty Co. v. Hood

87 So. 115, 124 Miss. 548

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21478
• Status: Published

Opinion

Ethridge, J..,

delivered the opinion of the court.

The judgment in this case was affirmed on a former day without written opinion. 86 So, 814. A suggestion of error has been filed in which we are asked to write our views if we should adhere to the former opinion, but earnestly insisting" that we erred in the decision heretofore rendered.

The appellee was the plaintiff below and the appellant the defendant. The appellant issued an accident policy to Clifton R. Hood, the husband of the appellee, in which policy the appellee Avas named as a beneficiary. The policy agreed to pay her, in the event of his death within the terms of the policy, ten thousand dollars, called the principal sum, and five thousand dollars by virtue of what is termed an “accumulation indorsement” attached to the policy.

The policy was first issued March 12, 1915, and was renewed from time to time, and Avas in force at the time of the death of ¡Clifton R. Hood.

The insurance was 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.”

Under the heading “General Agreements,” the policy contains various paragraphs, of which it is only necessary to mention here paragraphs 3 and 8, paragraph 3 being as follows.

“(3) The company shall in case of injury or disability haye the right and opportunity to examine the person of the assured or beneficiary when and as often as it requires, and shall also have the right and opportunity to make an autopsy in case of death.”

Paragraph 8, so far as necessary to state is as follows:

“(8) Compliance with all of the terms and conditions of this policy shall be a condition precedent to the recovery of any claim hereunder.”

1 The assured was fifty-six years of age, and, while walking in his yard on December 12, 1917, during the life of the policy, he slipped down, striking the back of his head on the frozen ground, which was heavily covered with ice. He was carried into his house, and put in bed, where he remained until .December 19, 1917, when he was removed to the King’s Daughters’ Hospital, in Greenville, Miss., and there died on the morning of December 27, and was buried in the afternoon of December 28, 1917.

Notice of the accident and of the death of the assured and proof of the. injury and loss were furnished by the appellee to the appellant within the time and as required by the policy.

The appellant denied liability and refused to pay the amount claimed, and suit was brought to recover the amount due.

The appellant pleaded the general issue and a special plea to' the declaration; contended under the general issue that the assured’s death was not the direct and exclusive result of his accidental fall, but that disease, existing at the time, was the sole or a contributing cause thereof, and, by said special plea, set forth the above paragraphs relating to the matter of autopsy, and then averred:

“That, upon being advised of the death of the assured, defendant demanded the opportunity to make an autopsy on the body of the said assured, Clifton E. Hood, and, under said paragraph -3, defendant was entitled to the right and opportunity to make an autopsy on said body ; and the plaintiff refused to this defendant the opportunity to make such an autopsy, and refused to permit such autopsy, which was a violation of paragraph 3 of said policy, and under the provision of paragraph 8, by reason of such failure and refusal to comply with the terms and conditions of the policy, plaintiff is not entitled to recover.”

To which special plea a replication was filed by the plaintiff, admitting the provisions of the policy set forth in the special plea, and then averred:

“That the demand for such autopsy was not made by defendant at or within a reasonable time after having been advised of the injury and resultant death of said assured, in that said defendant delayed making said demand until five or six days after the body of said assured had been buried.”

To which replication the appellant interposed a demurrer, which the appellee asked the court to extend to the said special plea of the defendant, which the court did, sustained the demurrer to the special plea, and ordered the appellant to plead over to the declaration.

Thereupon, by leave of court, the appellant filed a second and third special plea, pleading in each a demand for an autopsy and its refusal in bar of the suit.

The appellee joined issue upon the second special plea, and interposed a demurrer to the third special plea, which demurrer was sustained.

The second special plea showed that the demand for an autopsy Avas made after the burial of the deceased, and alleged that the request to perform an autopsy Avas made by the defendant immediately upon being advised of the death of the assured, and that the defendant was also advised that the death of the deceased was due to pre-existing disease and was not within the terms of its policy, death not having resulted directly and exclusively of all other causes from bodily injuries sustained solely from accidental means, and that an autopsy of the body would reveal this fact.

On the trial it appeared from the evidence of Dr. Gamble, a physician who attended the deceased, that the deceased was affected with high blood pressure and some kidney trouble; that Dr. Gamble had examined the deceased a few days before the accident, and that his condition was better than it had been for some years, and that, if the accident had not occurred, the deceased would probably have lived for a number of years; that the accident operated upon the diseased condition, but that the accident was the primary cause of his death, his death being caused by the fall accompanied by uremia. The deceased when injured was carried into his home and suffered great pain in his head, and was suffering when first attended by Dr. Gamble the following morning, and continued to suffer more or less until his death. After the injury and after the removal of the deceased to the hospital at Green-ville, Miss., he gradually passed into a comatose state.

Dr. Lewis, a physician', also attended the deceased, and his opinion was that the- death was caused by the fall and uremia.

Dr. Smythe, another physician, was also called to attend the deceased, but he was not introduced by the attorney for the appellee, but was placed on the stand by the appellant, and, in the absence of the jury; testified that he made one examination and one visit to the deceased, that in his opinion the condition of high blood pressure and the kidney trouble produced the death, and that he could not see that the fall liad anything to do with it. This evidence was excluded and did not go to the jury.

Dr. McMahon, who was present in the courtroom as an expert pathologist for the appellant company, and heard tlie evidence of the physicians, was asked the following-question :

“Q,. You have heard the testimony of Dr. Gamble in regard to the history of the case of Mr. .0. R. Hood and the symptoms of the case. From what you have heard, are you able to form an opinion as to the cause of the death? A. I think I am. Q. What is your opinion? A. After hearing the testimony of these doctors I should be of the opinion that this gentleman died from uremia, from arteriosclerosis, chronic interstitial nephritis, and perhaps organic heart disease. Q. Would you say that, the fall which he had brought about, accelerated, or had any effect upon the case? A. That would be a very hard question to answer, but in the light of the evidence of this high blood pressure, and the fact that he lived some fourteen days following the accident, I should say in all probability it did not have any effect.”

At'the conclusion of the evidence the appellant company requested a peremptory instruction, which was refused.

Certain instructions hereafter referred to were given to the appellee and excepted to, and certain instructions were refused to the appellant, and exception taken to such refusals.

There Avas a verdict and judgment for the appellee, Mrs. Hood, from Avhich this appeal is taken, and the folloAving assignments of error are assigned:

“(1) The court erred in overruling the demurrer filed by defendant to the plaintiff’s replication.

“(2) The court erred in applying the demurrer Avhich was overruled, and which was filed to the plaintiff’s replication, to the special plea filed by defendant.

“(3) The court erred in sustaining the demurrer of plaintiff to defendant’s third special plea.

“(A) The court erred in sustaining-the objection to the introduction of the testimony of J. D. Smythe, and in refusing to permit such testimony to go to the jury.

“(5) The court erred in granting eaph and every instruction given for the plaintiff.

“(6) The court erred in refusing each and every instruction requested by the defendant and refused by the court.

“(7) The court erred in overruling the motion for a new trial and in refusing to set aside the verdict of the jury and the judgment rendered thereon and to grant the defendants a new trial.”

The first three assignments relate to the ruling of the court on the demurrers and present for consideration the question whether or not the defendant had a right to an autopsy after the burial of the deceased.

The appellant has its principal office in Baltimore, Md., and has an agency at Memphis, Tenn., and an agent in Washington county, Miss. Under its rules it reserved to its home office the right to demand an autopsy; it being contended that neither the agent at Memphis, Tenn., or the agent in Washington county, Miss., had any right to demand or waive an autopsy. When the accident occurred the agent at Greenville, Miss., reported to the Memphis office. On the day preceding the death of deceased the agent reported to the Memphis office that the accident ivas much more serious than was first thought, and he reported the death to the Memphis office on the day that the deceased died, and on the following day sent a copy of the notice in the paper containing an account of the funeral arrangements.

The burial was on the 28th day of December, and on the 2d day of January the appellant company sent an adjuster to report upon the death. This adjuster conferred with the physicians and the undertakers, and obtained statements from them which he reported to the Memphis office, which office notified the home office on the 2d day of January and requested authority to demand an autopsy, which request, was granted by the home office, and the request communicated to the appellee, who advised the agent of the company that her brother would be there the next clay, and she wished to consult him. On January 3d the company sent a physician to conduct the autopsy, and this physician requested permission to make the autopsy, and was advised that a family council would be held the following- day. The physician returned home without having any other communication with the appellee or her family. On the 5th day of January the company wrote Mrs. Hood making a request for an autopsy, which on the 8th day of January she refused because the demand ivas made too late.

It will be seen from the above that no demand was made for an autopsy until after the burial, but the appellant insists that under its contract it had the right to make an autopsy, even though it required exhuming the body to do so.

There are a number of authorities which on their facts have held that the request for an autopsy came too late, but none of the authorities cited have passed specifically upon the question as to whether a demand for an autopsy after interment and its refusal would constitute a defense to the policy. The general trend of the authorities is to the effect that the demand must be seasonably made. It is insisted here'that the company had no notice of the necessity for an autopsy or the probable results that might follow an autopsy until after the interment, and that the right was not waived because the facts were not communicated to the company by the beneficiary until after the interment was made, and that it made the request seasonably after securing the information that an autopsy would probably show the nonliability of the company under the policy.

The company may, of course, confide to such of its officers as it may desire the sole power of making a demand for an autopsy in such cases, and may refuse the local agents any authority to either demand an autopsy or to waive the benefits. But where it does so it is nevertheless bound by knowledge coming to the knowledge of its agent and must exercise such reasonable diligence as the circumstances call for. In the present case it was advised of the seriousness of the injury prior to the death of the deceased, and knowledge of his death came to its agents in ample time, if promptly communicated, for it to have made the demand.

Provisions of the contract of this kind which are prepared hy the insurer are to be construed most strongly against the insurer and in favor of the insured. Where there is no provision in the contract itself giving the right of an autopsy after interment, the court will construe the provisions to mean that an autopsy must be demanded and performed- prior to interment, and, if the insurer desires to avail itself of this privilege, it must so arrange and provide for information to be given of the death prior to. the interment.

From a consideration of all the facts in the present case we think, if the Company had required its agents to report information to it, it could have learned all needed facts for the determination of its right to an autopsy before burial. If, however, this be not a correct view or consideration of the clause above set out, and if the clause is to be construed so as to mean that the insurer should have the right to exhume the body, then we think such contract would be in violation of public policy and would render it void. '

Section 1100, Code of 1906 (Hemingway’s Code, section 826),, makes it a felony for any purpose to remove a dead body of any human being from the grave or place of interment for the purpose of selling the same or for mere Avantonness, and prescribes a punishment.

Section 1101, Code of 1906 (Hemingway’s Code, section 827), prohibits any person from receiving or purchasing such body, knowing the same to have been disinterred contrary to the last section, and prescribes the punishment.

Section 1102, Code of 1906 (Hemingway’s Code, section 828), provides that every person who shall open a grave or other place of interment with the intent to remove the dead body of any human being for the purpose of selling the same, or for the purpose of dissection, or .to steal the coffin or any part thereof, or the fastenings or other articles interred with the dead body, or any of them, shall be punished, etc.

While the act of removing the body from the grave for the purpose of an autopsy under a contract of the character of the one here involved would not come within the literal meaning and purpose of the statute so as to make it a felony, still ive .think the statute establishes a settled purpose on the part of the public to protect the repose of the dead and to protect the living from the violation of the sensibilities and sentiments that cluster round the dead. There is no statute giving any person any right to disinter the dead body for this purpose. At common law it was a misdemeanor to disinter a dead body which had been buried, and even a disinterment for laudable motives Nas not a defense.

In 13 Oyc. at page 271, we find the following] “Except in cases, of necessity or for laudable purposes, the policy of the law is that the sanctity of the grave should be maintained, and thát a body once suitably buried should remain undisturbed,” — citing numerous authorities in note 18, from which note we quote the following: “A proper appreciation of the duty we owe to the dead, and a due regard for the feelings of their friends who survive, and the promotion of the public health and welfare, all require that the bodies of the dead should not be exhumed, except under circumstances of extreme exigency.”

At page 276 of 13 Cyc. we find the following statement: “It may be stated as the universal rule of law in civilized countries that it is an indictable offense to disinter and remove dead bodies wantonly or for the sake of gain, and by the old common law even the fact that the motive of the person removing the body is laudable is no defense. In most of the'states of the Union the violation of sepulture is made a specific offense by statute. But these statutes are not directed against and do not apply to exhumations made by public officials, with a view to ascertaining whether a crime has been committed; nor do they apply to a person who having obtained the necessary permit from the constituted authorities removes the dead body of a relative or friend for reinterment.”

The beneficiary in a life insurance policy is not the only person that has an interest in having the repose of the dead respected and held sacred. It is shocking to the senses to conceive of one person or one or more persons contracting so as to provide for the exhumation and mutilation of dead bodies. We think to hold that such rights may be established by contract is carrying commercialism to unwarranted extremes.

It is next assigned for error that the court erred in sustaining the objection to the introduction of the testimony of D'r. J. D. Smythe and in refusing to permit such evidence to go to the jury.

Section 3695, Code of 1906 (Hemingway’s Code, section 6380), reads as follows:

“AH communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient.”

In the case of Railroad v. Messina, 109 Miss. 143, 67 So. 963, this court held that the evidence of a physician as to knowledge gained by reason of his employment as such could not be disclosed without the consent of the patient; that the privilege was for the benefit of the patient, and not of the physician.

In Newton Oil Mill v. Spencer, 116 Miss. 568, 77 So. 605, this court held that a physician who had attended the party injured as his physician, though he was employed and paid by the company, could not testify, although the plaintiff had introduced another physician who testified as to the extent of his injuries. In this case the point was directly involved as to whether the plaintiff, Spencer, waived his privilege by placing a physician on the stand to testify relative to his injury about which the suit was instituted, and we treated the principle as being settled by the Messina Case, supra, and did not enlarge upon the law in announcing our conclusions, but the point was directly involved and pressed upon us in that case. There is no Conflict between the Spencer Case, supra, and any other case in this state. In the case of Hamel v. Railway Co., 118 Miss. 344, 74 So. 276, Division A of this court expressly reserved the decision of the point. In the Spencer Gase, supra, we expressly decided the point.

In attacking thes.e decisions the appellant says: “The bringing of an action in Avhich the essential part of the issue is the existence of physical ailment should be a Avaiver of the privilege for all communications concerning that ailment. The Avhole reason for the privilege is the patient’s supposed unAvillingness that the ailment should be disclosed to the world at large; hence the bringing of a suit in Avhich 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 disclosure does not exist.”

We do not agree with counsel that this is the whole reason for the enactment of the statute. One of the reasons that may have prompted the legislature in the enactment of the statute Avas the evil of commercializing knoAvledge so obtained by certain experts, so called, and by physicians employed by one party to Avait upon and minister to parties Avhich such employer had injured. But, whatever may have been the reason for the enactment of the .statute, the statute expressly prohibits a physician from testifying Avithout the consent of the patient. The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury. In such case the question ought to be directed to ascertaining Avhether the physician has knowledge by reason of the relation of physician and patient, and, if it was so acquired, it ought to be excluded.

It is next insisted that the injury was not caused directly and exclusively of all other causes from bodily injuries sustained during the life of the policy solely through accidental means.

It appears clearly from the testimony of Dr. Gamble that the active cause of the death ivas the accident and that the accident precipitated the other troubles; that, had the accident not occurred, death would not have resulted for some years.

Does the provision of the policy “the effects resulting directly and exclusively of all other causes from bodily injury sustained during the life of this policy solely through accidental means” mean that there can be no recovery if there is a latent or dormant disease which becomes active through the agency of the accident, and. cooperates with the other effects of the accident in bringing about death?

We think that, if the accident is the proximate cause of the death and sets in motion or starts a latent or dormant disease, and such disease merely contributes to the death after being so precipitated by the accident, it is not a proximate cause of the death nor a contributing cause within the meaning of the terms of the policy.

In Patterson v. Ocean Accident & Guarantee Corporation, 25 App. D. C. 46, the rule is stated in one of the head-notes as to proximate cause as follows:

“What is the proximate cause of an injury is generally a question for the jury, to be determined as a fact in vieAV of all the circumstances of fact attending it; . . . and where, in an action on an accident insurance policy, the evidence tending to shoAV that the death of the decedent was the immediate result of an. accident is weak, but it cannot be said that all reasonable men Avould necessarily conclude that it was not the result of the accident, the case is one for the jury.”

And it is also stated: “The rule of interpretation of contracts of insurance of all kinds is that, in cases of doubt, that interpretation shall be given which favors the insured rather than the insurer; and this rule has its strongest application in relation to those terms of the policy that would work the forfeiture of a right otherwise maintainable.”

In that case the clause involved read as follows: “By the first of these the insurance is expressly stated to be, ‘against the accidental bodily injuries caused solely . . . by external, violent and visible means which shall, independent of all other causes, disable the assured.’

“That a strain received in the ordinary course of the assured’s business, if deceived at all, is an accident within the contemplation of the policy, We can have no doubt. United States Mut. Acc. Ass'n v. Barry, 131 U. S. 100, 121, 33 L. Ed. 60, 67, 9 Sup. Ct. Rep. 755.

“The universal rule of interpretation of contracts of insurance of all kinds is that, in cases of doubt, that interpretation shall be given which favors the insured rather than the insurer. The particular words quoted would seem to have been intended particularly to apply to a case of disability for Avhich the assured might claim the indemnity stipulated in the policy. But, assuming that they were expressly intended to apply to the death indemnity clause, and be read in connection with the words therein providing that death shall result from accidental bodily injuries as the ‘actual and direct cause thereof,’ we think they cannot be regarded as clearly meaning that there shall be no recovery in a case where there was a preexisting diseased condition of the body — a predisposing cause of death, as it has been called — notwithstanding the accidental injury may have been the exciting, efficient, predominant cause.

“Their meaning, considering them together or separately, is, in our opinion, that the intervening accident must be the proximate, direct cause of death, and nothing more. This conclusion is supported by the following authorities: Fetter v. Fidelity & C. Co., 174 Mo. 256, 61 L. R. A. 459, 97 Am. St. Rep. 560, 73 S. W. 592; Horsefall v. Pacific Mut. L. Ins. Co., 132 Wash. 132, 63 L. R. A. 425, 98 Am. St. Rep. 846, 72 Pac. 1028; Modern Woodman Acci. Asso. v. Shryock, 54 Neb. 250, 39 L. R. A. 826, 74 N. W. 607; Freeman v. Mercantile Mut. Acc. Ass’n, 156 Mass. 351, 353, 17 L. R. A. 753, 30 N. E. 1013. See, also, Winspear v. Accident Ins. Co., L. R. 6 Q. B. Div. 42, 45; Travelers’ Ins. Co. v. Murray, 16 Colo. 296, 25 Am. St. Rep. 267, 26 Pac. 774; Atlanta Acci. Asso. v. Alexander, 104 Ga. 709, 42 L. R. A. 188, 30 S. E. 939; O'mberg v. United States Mut. Acc. Ass’n, 101 Ky. 303, 72 Am. St. Rep. 413, 40 S. W. 909.

“The doctrine is Avell expressed by the supreme judicial court of Massachusetts in Freeman v. Mercantile Mut. Acc. Ass’n, 156 Mass. 351, 17 L. R. A. 753, 30 N. E. 1013, in the folloAving words: ‘The law avü! not go farther back in the line of causation than to find the active, efficient, procuring cause of Avhich the event under consideration in the natural and probable consequence, in vieAV of the existing circumstances and conditions. . . . An injury Avhicli might naturally produce death in a person of a certain temperament or state of health is the cause of his death, if he dies by reason of it, even if he Avould not have died if his temperament or previous health had been different; and this is so as Avell Avhen death comes through the medium of a disease directly induced by the injury as AArhen the injury immediately interrupts the vital processes.’ ”

See, also, Freeman v. Mercantile Mutual Accident Ass’n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S. W. 592, 61 L. R. A. 459, 97 Am. St. R. 560; Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 493; Moon v. Order of United Commercial Trav. of America, 96 Neb. 65, 146 N. W. 1037, Ann. Cas. 1916B, 222; Hall v. General Accident Assur. Corp., 16 Ga. App. 66, 85 S. E. 600; Thornton v. Travelers’ Ins. Co., 116 Ga. 129, 42 S. E. 287, 94 Am. St. Rep. 99; Continental Casualty Co. v. Lloyd, 165 Ind. 52, 73 N. E. 824; Driskell v. United States Health & Acc. Ins. Co., 117 Mo. App. 362, 93 S. W. 880; Bohaker v. Travelers’ Ins. Co., 215 Mass. 32, 102 N. E. 342, 46 L. R. A. (N. S.) 543.

There are numbers of cases, and especially cases in the federal court, which hold to the contrary of the doctrines herein announced, but we think the authorities cited in support of this opinion adopt the true rule. It is not sufficient to defeat the policy that the accident may have made some latent disease active, which disease contributed in some degree to the death. If the disease was active and of such character and virulence as to endanger life apart from the accident, but might not have done so had the accident not happened, then that -may be said to be a proximate contributing cause. The court ought not to construe a contract so as to defeat rather than promote the purpose of the party in talcing out the insurance. The condition of health or the existence of latent and inactive disease evidently was not contemplated by the parties in making the contract. No medical examination ivas required, and the pleadings did not seek to question the answers given by the assured as to his condition of health at the time the application was signed.

Next the assignments go to the giving of the instructions for the plaintiff and the refusal of the instructions for the defendant. The instructions of the court which were given to the jury accord with our views as herein announced. The refused instructions sought to present the theory to the jury that the law was that any cause contributing to the death would bar recovery, even though it was not a proximate cause, the proximate cause hypothesis was omitted from these instructions, and for that-reason they were rightfully refused.

The suggestion of error will therefore be overruled.

Overruled.