{ "id": 2817975, "name": "Marie Crandall, Appellee, v. Continental Casualty Company, Appellant", "name_abbreviation": "Crandall v. Continental Casualty Co.", "decision_date": "1913-03-12", "docket_number": "Gen. No. 5,749", "first_page": "330", "last_page": "347", "citations": [ { "type": "official", "cite": "179 Ill. App. 330" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "127 Iowa 25", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8645430 ], "opinion_index": 0, "case_paths": [ "/iowa/127/0025-01" ] }, { "cite": "115 Am. St. Rep. 997", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "5 L. R. A. (N. S.) 926", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "127 Wis. 67", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8700590 ], "opinion_index": 0, "case_paths": [ "/wis/127/0067-01" ] }, { "cite": "106 Md. 299", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2105182 ], "opinion_index": 0, "case_paths": [ "/md/106/0299-01" ] }, { "cite": "83 Conn. 708", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 500232 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/conn/83/0708-01" ] }, { "cite": "165 Ind. 52", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1612173 ], "opinion_index": 0, "case_paths": [ "/ind/165/0052-01" ] }, { "cite": "174 Mo. 256", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1347246 ], "opinion_index": 0, "case_paths": [ "/mo/174/0256-01" ] }, { "cite": "155 Fed. 54", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3957700 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f/155/0054-01" ] }, { "cite": "85 C. C. A. 122", "category": "reporters:federal", "reporter": "C.C.A.", "weight": 2, "opinion_index": 0 }, { "cite": "85 Neb. 471", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 575393 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/neb/85/0471-01" ] }, { "cite": "95 Minn. 77", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1709048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/minn/95/0077-01" ] }, { "cite": "79 Fed. 423", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 68953 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/f/79/0423-01" ] }, { "cite": "24 C. C. A. 654", "category": "reporters:federal", "reporter": "C.C.A.", "weight": 3, "opinion_index": 0 }, { "cite": "100 Mo. App. 602", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1506379 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mo-app/100/0602-01" ] }, { "cite": "76 S. E. Rep. 262", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "158 N. C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654555 ], "opinion_index": 0, "case_paths": [ "/nc/158/0029-01" ] }, { "cite": "73 Fed. 774", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 7854164 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f/73/0774-01" ] }, { "cite": "20 C. C. A. 3", "category": "reporters:federal", "reporter": "C.C.A.", "weight": 2, "opinion_index": 0 }, { "cite": "80 Ill. App. 563", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5785816 ], "opinion_index": 0, "case_paths": [ "/ill-app/80/0563-01" ] }, { "cite": "179 Fed. 794", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3934296 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f/179/0794-01" ] }, { "cite": "103 C. C. A. 286", "category": "reporters:federal", "reporter": "C.C.A.", "weight": 2, "opinion_index": 0 }, { "cite": "166 Ill. App. 38", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 8499331 ], "opinion_index": 0, "case_paths": [ "/ill-app/166/0038-01" ] }, { "cite": "144 Ill. App. 255", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2670618 ], "opinion_index": 0, "case_paths": [ "/ill-app/144/0255-01" ] }, { "cite": "129 Ill. App. 104", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2526431 ], "opinion_index": 0, "case_paths": [ "/ill-app/129/0104-01" ] }, { "cite": "63 L. R. A. 603", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "121 Iowa 528", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8647421 ], "opinion_index": 0, "case_paths": [ "/iowa/121/0528-01" ] }, { "cite": "40 L. R. A. 653", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "151 N. Y. 94", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 29720 ], "opinion_index": 0, "case_paths": [ "/ny/151/0094-01" ] }, { "cite": "220 Ill. 151", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3345962 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/220/0151-01" ] }, { "cite": "254 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4688183 ], "opinion_index": 0, "case_paths": [ "/ill/254/0080-01" ] }, { "cite": "133 Ill. 556", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5426641 ], "opinion_index": 0, "case_paths": [ "/ill/133/0556-01" ] } ], "analysis": { "cardinality": 1035, "char_count": 32775, "ocr_confidence": 0.5, "pagerank": { "raw": 3.303024455600291e-07, "percentile": 0.8720077888710887 }, "sha256": "cdcca3cf47eac84a1dfb10e05a87f0c4178c8467fbeb228bf6326db0ed8eaa5f", "simhash": "1:1183a72283325224", "word_count": 5669 }, "last_updated": "2023-07-14T20:30:26.614209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Marie Crandall, Appellee, v. Continental Casualty Company, Appellant." ], "opinions": [ { "text": "Mr. Justice Carnes\ndelivered the opinion of the court.\nThis is a suit in assumpsit upon a health and accident insurance policy issued by appellant to the husband of appellee, May 11, 1905. The insured died September 8, 1911, and appellee is his beneficiary. The declaration sets out the policy in full, but the question here arises on the promise to pay the sum of $400 if the insured \u201cshould receive bodily injury which was effected directly and independently of all other causes through external, violent and purely accidental means resulting in death of insured necessarily and solely from such injury\u201d within ninety days thereafter. It is averred that on September 6, 1911, the insured, \u201cwhile in the act of eating food, accidentally choked thereon, and there and thereby received personal bodily injury which was effected directly and independently of all other causes through external, violent and purely accidental means as aforesaid, and from which personal bodily injury, within ninety days after receiving the same, the death of the insured resulted necessarily and solely from such injury.\u201d The plea of general issue and a special plea were filed, the special plea setting up a release. In the view we take of the case, it will be unnecessary to consider the issue raised on the special plea. The verdict and judgment was for plaintiff.\nAppellant says there is no dispute about the facts. Appellee says certain of the important facts are not in dispute and does not point out any material ones that are in dispute. The evidence disclosed without contradiction that Alonzo L. Crandall, the insured, was a man about fifty years of age, apparently in the average state of health of a man of his years, employed in the freight department of a local railroad and had been steadily employed at manual and clerical work for a number of years before his death, except for about a month in October, 1910, when he was suffering from an accident and injury for which he received a payment from appellant under this same policy; that he apparently recovered from that injury and up to the time of the accident in question here had no knowledge that any disease, or serious bodily infirmity existed in consequence of that injury; that at noon on September 6, 1911, he was eating some meat pie and a portion of it became lodged in the oesophagus about fourteen inches from the teeth, which brought on coughing, and straining in an effort to dislodge the obstruction, which was not accomplished, and he went to work as usual about twenty minutes later. He came home from work that evening, could not swallow anything, and got a tube from a neighbor and with it tried to dislodge the obstruction, but without success. The next morning he was still unable to swallow but went to work as usual. He was suffering all the time from the effect of the obstruction and about eleven o\u2019clock went to Doctor Cooper, who after three attempts succeeded in pushing it into the stomach. The insured was then able to swallow water, but was in great pain afterwards, and the doctor gave him a hypodermic of morphine, and called on him at his home twice that day and once in the morning of the next day (September 8) but the patient grew worse from the time of the operation and died about two p. m. of that day. There was an autopsy which disclosed an abscess, which would hold from five to six ounces of pus, about as large as a good sized pear, underneath or behind the oesophagus and an opening in the oesophagus right opposite the abscess. The abscess had been ruptured in the mediastinum space and part of its contents discharged into the pleural cavity. The medical testimony establishes without question that the contributing causes of the death were the choking and the abscess; that the insured might not have choked at the time he did, and would not have died at the time he did but for the abscess. Doctor Cooper testified, \u201cThe rupture of the abscess caused his death. The presence of the abscess, I think, had some influence in causing the choking. In my opinion the abscess was one of the causes of the death of the insured. The abscess was one of the contributing causes of the death of Mr. Crandall. I do not think Mr. Crandall would have died at the time he did die, if it had not been for the abscess. The choking, and the treatment I administered to Mr. Crandall on September 7, would not have brought about the death of a man in a normal condition and free from disease. * * * It is possible * * * that nature would have taken care of that abscess and that Mr. Crandall would have recovered had it not been for his choking. The abscess, so far as I was able to judge, was of some considerable standing. The longer the abscess continued, the greater the possibility of nature absorbing it. It is my theory that this abscess was of long standing and had been discharged into the oesophagus. * * * The fact that it is of long standing would indicate that nature is taking care of it. * * * I think it possible * * * that it would have been discharged out through the oesophagus and have carried out of the system in a natural way, and entirely healed, had it not been for a sudden rupture of the abscess. * * # I think that Mr. Crandall would not have died at the time he did but for the choking. He might have lived and entirely recovered from that (the abscess) * * *. It had ruptured subsequent to the choking. It does not necessarily follow that an abscess of that sort will be taken care of by nature. It is very probable that Mr. Crandall might have died of that abscess eventually. * * * I think it is very possible that the abscess would have eventually caused his death. * * * It is very possible that Mr. Crandall might have lived indefinitely with that condition. The rupture of an abscess in that cavity would be a shock to the system. Mr. Crandall died from the shock of distributing this stuff in his system. Nature has provided no way or means of taking care of it from the pleural cavity.\u201d There was no other medical testimony in the case. Therefore it is beyond dispute that the injury produced by the lodging of the meat in the oesophagus caused the death of the insured only because of the presence of the abscess.\nThe case presents the question whether an injury fatal only because of pre-existing disease or bodily infirmity can be said to be the sole cause of death; whether in such case death can be said to result necessarily and solely from such injury. But first, \u201cDid the deceased receive personal bodily injury which was effected directly and independently of all other causes, through external, violent and purely accidental means?\u201d And if he did, then \u201cDid the death of insured result necessarily and solely from such injury?\u201d If the second question is answered in the negative, it is not necessary to consider the first. Counsel for appellant, while not conceding the first question, have devoted their attention principally to the second. We will first consider the second question: Did the death of insured result necessarily and solely from such injury? It must be borne in mind that there is no evidence showing or tending to show that the injury caused the abscess; neither is there any evidence that the accident, independent of the abscess, caused the death. There is no doubt but that at the time of the accident the abscess was present and had existed for some time and that it did co-operate with the accidental injury to produce death. In reviewing the authorities it is helpful to divide accidental injuries associated with disease or bodily infirmities into three classes.\nFirst. Accidents that cause the disease which causes death; as for instance, accidents that cause septicaemia or blood poisoning, followed by death.\nSecond. Accidents that cause the death of a person suffering from disease or bodily infirmity, which had no causal connection with the death; as for instance, death from gun shot wound of a person suffering from tuberculosis or heart disease.\nThird. Accidents to persons suffering from preexisting disease or bodily infirmity, where death results from the accidental injury, and the pre-existing disease or infirmity, acting together; as for instance, an accidental injury to a person in the last stages of heart disease, that only because of such disease, results in sudden death.\nIn considering the various cases arising on accident insurance contracts containing similar provisions, we must bear in mind that the policy under consideration here is not one with a general undertaking to answer in case of death, or even death from accidental causes, with a clause excepting specific causes and thus limiting the general liability. Questions arise as to the order and burden of proof under policies so framed. There are also found cases where the undertaking is limited, as in this case, by its own terms as first stated, yet followed by exceptions of specified causes that, without such express exceptions, could not have fallen within the stipulated undertaking to pay. This form of policy seems to have been quite usual in the time of the earlier cases and less common in later years. We see no difference in construction of an insurance contract where the undertaking is as first stated clearly to answer only for death from some limited cause or causes, whether it is followed by express exception of some cause not there included, or not. If the stipulation be to pay in case of death from poison, it is immaterial whether or not it be followed by an express provision that the insurer will not be liable in case of death from some other specified cause. The plaintiff must aver and prove death from poison. Yet in discussing cases containing such useless exceptions, the courts have often naturally referred to them as express provisions that the insurer would not be liable in such event. The legal effect of the policy is the same whether the redundant provision is present or. not.\nCounsel for the respective parties direct our attention to Illinois cases holding that policies of insurance being signed by the insurer only, and the language being that of the insurer, the provisions of the policy are to be construed most favorably for the insured in case of doubt or uncertainty in its terms so as not to defeat, without a plain necessity, his claim to the indemnity which in making the insurance it was his object to secure. But where there is no ambiguity or uncertainty in a contract of insurance, courts are in duty bound to construe the contract according to its plain terms and must not indulge in far-fetched constructions to fix a liability upon the company. The cases of Healey v. Mutual Accident Ass\u2019n, 133 Ill. 556 and Crosse v. Knights & Ladies of Honor, 254 Ill. 80, are in point, but the rule has been many times announced in this state and is a general rule of construction often repeated in decisions of other states and the text books. It is not necessary to point out further authorities sustaining and illustrating it. It is a general and well recognized rule of construction of written contracts, applied to insurance policies.\nOur Supreme Court in Central Accident Ins. Co. v. Rembe, 220 Ill. 151, had under consideration a case involving the queston of cause of death. The insurance contract provided \u201cthat upon the death of the insured caused by external violence and accidental means the company would pay,\u201d etc., and as plead in the first count of the declaration was followed by this excepting clause, \u201cThis policy does not cover * * * death * * * resulting wholly or partially from any of the following causes: * * * voluntary or involuntary taking of poison or contact with poisoned substance.\u201d The insured, who was a physician, while preparing medicine for a patient in removing the cork from a bottle, accidentally broke the neck of the bottle, a piece of glass cutting a small wound in his finger. Blood poisoning followed and he died within a few days from its effect. There was evidence tending to prove that the infection was introduced at the time the wound was inflicted and the question arose whether his death, should be held to have resulted wholly or partially from coming in contact with a poisoned substance. The court, in discussing the question, says, \u201cThe cause of the death, as we understand it, was the wound in the finger, by means of which blood poisoning intervened, \u2019 \u2019 and cites with approval Martin v. Manufacturers\u2019 Accident Indemnity Co., 151 N. Y. 94, holding that inoculation of the wound at the very time of its infliction is a part of the injury, and the immediate cause of the death. Quotes from Western Commercial Travelers\u2019 Ass\u2019n v. Smith, (56 U. S. App. 393), 40 L. R. A. 653; \u201cIf the death was caused by a disease which was not the result of any bodily infirmity or disease in existence at the time of the accident, hut which was itself caused by the external, violent and accidental means which produced the bodily injury, the association was equally liable to pay the indemnity. In such case the disease is an effect of the accident; the incidental means produced and used by the original moving cause to bring about its fatal effect; a mere link in the chain of causation between the accident and the death.\u201d Quotes from Delaney v. Modern Accident Club (121 Iowa 528), 63 L. R. A. 603; \u201cDisease brought about as the result of a wound, even though not the necessary or probable result, yet if it is the natural result of the wound, and not of an independent cause, is properly attributed to the wound; and death resulting from the disease is a death resulting from the wound, even though the wound was not, in its nature, mortal or even dangerous.\u201d The court concludes that the plaintiff was entitled to recover on the theory that the wound of the finger was the cause of death, but also says the plaintiff was entitled to a verdict under the other count of the declaration in which this question was not involved. This court in U. S. Health & Accident Ins. Co. v. Harvey, 129 Ill. App. 104, considered a similar question and said, \u201cIf the resulting disability is the effect of the accident, so as to be a mere link in the chain of causation between the accident and the disability, then the disability must be attributed to the accident alone, and is not excepted from the risk. The puncture by the wire or nail was within the terms of the policy, and blood poisoning resulting from, and being caused by the accident, was a disease caused by the accidental wound and is within the policy.\u201d Again in Coulter v. Travelers\u2019 Protective Ass\u2019n, 144 Ill. App. 255, this court passed on an instruction, \u201cThat though the jury believe from the evidence that the death of Coulter was caused in part by bodily infirmity or disease; yet if you believe from the evidence that said Coulter received accidental injuries and that such bodily infirmity or disease was caused by or was a natural, direct, proximate and necessary result of such accidental injuries and that such accidental injuries were the direct cause of his death, then the fact that such bodily infirmities or disease contributed to cause the death of the deceased would not constitute a defense to this action,\u201d and held the instruction good and in accordance with the rule announced in the Rembe and Harvey eases, supra. In none of these three Illinois cases was the question presented of pre-existing disease combined with the accidental injury. The court only held that in case of an injury causing the disease which caused death, the injury is to be considered the only cause of death; but in discussing that question and citing authorities, seem to have had in mind the difference between a disease that is caused by the injury and a pre-existing disease. In Moore v. Illinois Commercial Men\u2019s Ass\u2019n, 166 Ill. App. 38, the Appellate Court of the First District considered a clause in an insurance contract as follows: \u201cWhenever any member * * * shall, through external, violent and accidental means, receive bodily injuries which shall * # * independently of all other causes result in the death of said member,\u201d etc., and held on the authority of Illinois Commercial Men\u2019s Ass\u2019n v. Parks, 103 C. C. A. 286, 179 Fed. 794, that the burden of proof is on the beneficiary under the policy, not only to establish that the injury from which death ensued was accidental, but \u201cthat such accidental injury was the sole cause of death, independently of any pre-existing /disease or bodily infirmity, as contributory cause thereof.\u201d The first three of these Illinois cases are authority for a rule that death occurring from disease caused by an injury is to be considered as caused only by the injury and the last case for a rule that if the disease causing or contributing to death is a pre-existing disease, the plaintiff cannot recover.\nCounsel for appellee refers us to Railway Officials\u2019 & Employers\u2019 Acc. Ass\u2019n v. Coady, 80 Ill. App. 563, as holding a different rule. In that case there was a conflict of evidence as to what caused death, and it is not clear that the reasoning of the court was not on the assumption that the accident caused the death independent of the bodily infirmity. The question of pre-existing disease was briefly considered without reviewing the authorities, and we do not think the court intended to say that a death caused by an accident, because only of a pre-existing disease co-operating with the accident, is to be held to be caused only by the accidental injury.\nNational Masonic Acc. Ass\u2019n of Des Moines v. Shryock, 20 C. C. A. 3, 73 Fed. 774, was decided in 1896 and has been often cited in later cases. The clause referring to cause of death read, \u201cwhich would independently of all other causes cause his death,\u201d followed by the stipulation that the insurance does not cover death resulting wholly, or in part, directly or indirectly, from disease or bodily infirmity. The insured suffered an injury from an accident that would not have been sufficient to produce death if his heart had not been weakened by disease, but because his heart was weakened by disease, there was evidence tending to show that the accident caused his death. The court said, \u201cIf he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated-the effect of the accident, the express contract was that the Association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the Association from liability therefor.\u201d The court treats these propositions as settled law and cites many authorities in support of them.\nPenn v. Standard Life & Accidental Ins. Co., 158 N. C. 29, was decided by the Supreme Court of North Carolina in December, 1911, and again considered on petition for rehearing in November, 1912. (76 S. E. Rep. 262.) It was an action on an accident policy which insured against \u201cthe irrecoverable and entire loss of one eye * # * effected directly and independently of all other causes, through external, accidental and violent means.\u201d The theory of fact upon which the court discussed the law was that the insured had a cataract and while in that condition received an injury to his eye by falling from a car that, combining with the diseased condition, resulted in loss of sight. The trial court charged the jury that if they found \u201cthat the plaintiff fell from the car and was thereby injured and that this injury was soon thereafter followed by loss of sight,\u201d and further found \u201cthat the condition of the plaintiff\u2019s eye at that time was such that independent of the injury, he would ultimately have lost his sight, and that this injury, falling from the car, merely hastened the loss of his sight, in that event you will not find that the injury was caused directly and independently of all other causes through external, accidental, and violent means. The court, disregarding the clause of the instruction \u201cthat he would ultimately have lost his sight,\u201d discussed the law and reviewed the authorities in cases where the death or injury was the combined result of accident and pre-existing disease, reaching the conclusion that under the terms of the policy there could be no recovery if the loss of sight so resulted. The court quotes with approval from Carr v. Pacific Mut. Life Ins. Co., 100 Mo. App. 602, that the question of \u201cproxim\u00e1te and immediate cause is not raised under the conditions of a policy which in terms excludes disease or bodily infirmity, and which could have no more force than the general provision, \u2018independent of all other causes.\u2019 \u201d Cites Commercial Travelers\u2019 Mut. Acc. Ass\u2019n of America v. Fulton, 24 C. C. A. 654, 79 Fed. 423, and says, \u201cIf the jury had found that the injury was caused by the sum of . two causes, that is, that the accident and the pre-existing cataract and diseased condition of the eye were together responsible for the subsequent blindness, the plaintiff could not have recovered, as the injury must have resulted from the accident, independent of all other causes.\u201d Cites White v. Standard Life & Accident Ins. Co., 95 Minn. 77, and approves its holding that, \u201cIf an injury and an existing bodily disease or infirmity concur and cooperate to that end, no liability exists,\u201d but says, \u201cIf, however, the injury be the cause of the infirmity or disease\u2014if the disease results and springs from the injury\u2014the company is liable, though both co-operate in causing death;\u201d also in cases where the insured is afflicted at the time of the accident with some bodily disease, if the accidental injury be of such a nature as to cause death solely and independently of the disease, liability exists. Quotes from Ward v. Aetna Life Ins. Co., 85 Neb. 471, \u201cPlaintiff was not entitled to recover if death was caused by the sum of these two causes.\u201d Again, illustrating from New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 122, 155 Fed. 54, where it was conceded that appendicitis caused the death of insured and the question was whether a fall, \u201cacting independently of any other cause, produced this disease.\u201d And it was held that if there was a susceptibility to have appendicitis, in case a proper exciting cause should arise and the fall prove to be such exciting cause, the case would be one for recovery. But if there was not merely a susceptibility, but the actual disease itself existed, liable to be rendered active and virulent by an injury, the active disease which resulted in death, would not be regarded as the result of the fall alone, but as the joint result of the fall and the latent disease.\nThe court in the Penn case, supra, from which we have been quoting formulates three rules based on the authorities very fully and carefully reviewed:\n(1) \u201cWhen an accident caused a diseased condition, which together with the accident resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or death.\u201d\n(2) \u201cWhen at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause.\u201d\n(3) \u201cWhen at the' time of the accident there was an existing disease, which, co-operating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause, or as the cause independent of all other causes.\u201d\nThe petitioner for rehearing urged upon the court the case of Fetter v. Fidelity & Casualty Co., 174 Mo. 256, which case is by appellee here much relied upon. The court reviewed the case and noted that in the Fetter case, supra, there was a question of fact whether the disease (cancer of the kidney) that cooperated with the accidental injury to the kidney to produce death was or was not caused by the injury, which question might be regarded as answered in the affirmative by the verdict of the jury, and the plaintiff entitled to recover under Buie 1 as there stated, and the court\u2019s discussion of proximate cause regarded as not necessary to the decision of the case, and that the court manifested, a distrust of its own reasoning in that part of its discussion by recurring to the fact that there was a fair question whether the accident caused the disease, and the jury might be sustained in finding that it did. In the Penn case, supra, the instruction reviewed stated the law applicable to a case where the contributing disease (cataract) would, without the accident, have caused the loss of the eye, and does not literally cover the question here, because in this ease under the evidence, the abscess alone might not have caused the death of insured. But we see no difference between death from the contributing causes or injury and a necessarily fatal abscess, and death caused by injury and an abscess not alone necessarily fatal. In our case neither the abscess nor the injury was necessarily fatal. The injury, in the absence of the abscess, would not have caused death. The abscess in the absence of the injury was perhaps fatal, perhaps not. The court in the Penn case, supra, on the petition for rehearing noted this point and said, \u201cIt should be understood that in case of an accident resulting in injury or death, if there was an existing disease having also a causal connection therewith, it is not necessary that the disease itself should have been one which would ultimately have proved fatal, or that it should be of itself sufficient to have caused the injury or death. \"Under the rule that, where the injury or death has been caused by the sum of two causes, it is sufficient to prevent a recovery on the policy, if any ordinary disease, not itself necessarily fatal, should contribute with the accident to cause the death; that is, if without the presence of the disease, the accident itself would not have been sufficient to have caused the injury or the death. And so in this case it would have been sufficient to have shown a diseased condition of the eye, which, together with the alleged accident, resulted in blindness. It is not necessary in such a case to show that the disease of the eye was such that it would ultimately have resulted in blindness.\u201d\nAppellee relied much upon the case of Continental Casualty Co. v. Lloyd, 165 Ind. 52. The case was decided in 1905 and presents questions very similar to those under consideration here. There was a rupture of an artery caused by the presence of a pre-existing tumor. It was urged that the death of insured was caused partly by accident and partly by diseased and weakened condition of the artery, and as insurer\u2019s liability was limited to \u201cSuch injuries as shall solely and independently of all other causes, necessarily result in death,\u201d that there could be no recovery. The court seems to have assumed that under that clause the injury was as to the efficient, dominant, proximate cause of death\u2014that is that \u201csole cause of death\u201d and \u201cefficient, dominant, proximate cause of death\u201d are phrases with the same meaning. Several authorities are cited by the court to sustain that position. On examination of them it will be found that in a part of the cases the words \u201cproximate cause\u201d were used in the policy, leaving no question as to the relative meaning of the two phrases. It was held in Carr v. Pacific Mut. Life Ins. Co., 100 Mo. App. 602, that there is no question of proximate and immediate cause arising in consideration of the phrase \u201conly cause,\u201d or its equivalent. The case of Commercial Travelers\u2019 Mut. Acc. Ass\u2019n of America v. Fulton, 24 C. C. A. 654, 79 Fed. 423, also holds that the question of proximate cause is not involved where the question of only cause is under consideration and reviews some of the authorities cited in the Lloyd case, supra, sustaining its postion, and as we have seen, the Penn case, supra, concurred in that view. In the Lloyd case the conclusion was reached that the insurer was liable and the decision is not reconcilable with that of the Penn case and the other cases there cited and followed, but we believe the great weight of authority supports the conclusions reached in the Penn case, and while the direct question here involved has not been settled by our Supreme Court, that it has in its reasoning in the case of Central Accident Ins. Co. v. Rembe, supra, indicated an accord with the views expressed in the Penn case. The following authorities support this construction of the contract: Stanton v. Travelers\u2019 Ins. Co. (1910) 83 Conn. 708; Thomas v. Fidelity & Casualty Co. of New York (1907) 106 Md. 299; Ward v. Aetna Life Ins. Co., 85 Neb. 471; New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 122, 155 Fed. 54; Cary v. Preferred Accident Ins. Co. of New York, 127 Wis. 67, 5 L. R. A. (N. S.) 926, 115 Am. St. Rep. 997, 7 Ann. Cas. 484; National Masonic Acc. Ass\u2019n of Des Moines v. Shryock, 20 C. C. A. 3, 73 Fed. 774; Commercial Travelers\u2019 Mut. Acc. Ass\u2019n of America v. Fulton, 24 C. C. A. 654, 79 Fed. 423; White v. Standard Life & Acc. Ins. Co., 95 Minn. 77, 5 Ann. Cas. 83; Binder v. National Masonic Acc. Ass\u2019n, 127 Iowa 25, 35 and 1 Cyc. 263, and note 64. In the late case of Illinois Commercial Men\u2019s Ass\u2019n v. Parks, 103 C. C. A. 286, 179 Fed. 794, many of the authorities are reviewed.\nIt is suggested that such construction may sometimes work hardship, but it may well be answered in the language of the court in Carr v. Pacific Mut. Life Ins. Co., supra, \u201cWhat are the courts to do in. such cases? We can only construe the contract as we find it. The parties had a right to so contract, as there is no law prohibiting such, and it does not appear to be ultra vires.\u201d And it may be added that rules 1 and 2 stated in the Penn case, supra, fairly protect the insured. It is necessary that the rights of both the insured and insurer be fixed and based on some recognized rules of law. Cases can be imagined when rule 3 would seem harsh and offensive, but it is quite as easy to imagine cases where, to permit a recovery because of a slight accident and great bodily infirmity combining to cause death, would be absurd. There are few general rules that do not provoke protest in extreme cases.\nOur conclusion is that the plaintiff failed to prove that the death of the insured was caused, as provided in the policy, and must therefore fail in her suit. It is, therefore, unnecessary to consider or decide other questions of errors presented.\nThe judgment of the court below is reversed and as the whole case is now before us and evidently cannot be changed by another trial, we therefore reverse without remanding.\nReversed with finding of facts.\nFinding of facts. We find that the death of Alonzo L. Crandall was not caused by receiving personal bodily injury which directly and independent of all other causes, through external, violent and purely accidental means resulted in his death, necessarily and solely from such injury.", "type": "majority", "author": "Mr. Justice Carnes" } ], "attorneys": [ "Woleenbarger & May and M. P. Cornelius, for appellant; Mant\u00f3n Maverick, of counsel.", "Egbert N. McCormick, for appellee." ], "corrections": "", "head_matter": "Marie Crandall, Appellee, v. Continental Casualty Company, Appellant.\nGen. No. 5,749.\n1. Insurance\u2014construction of contract. Wliere there is no ambiguity or uncertainty in a contract of insurance courts are bound to construe it according to its plain terms.\n2. Insurance\u2014injury fatal because of -pre-existing disease. Where the insured dies from the contributing causes of choking on food and a pre-existing abscess in the oesophagus, no recovery can be had under a policy providing for payment if the insured \u201cshould receive bodily injury which was effected directly and independently of all other causes through external violent and purely accidental means resulting in death of insured necessarily and solely from such injury.\u201d\n3. Insurance\u2014when immaterial whether pre-existing disease which contributed in causing death was alone fatal. Where choking on food and a pre-existing abscess in the oesophagus are the contributing causes of the death of the insured it is immaterial whether the abscess alone was necessarily fatal when recovery is sought on a policy providing for payment in case of death from bodily injury effected directly and independently of all other causes through external, violent and purely accidental means.\nAppeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1912.\nReversed with finding of facts.\nOpinion filed March 12, 1913.\nWoleenbarger & May and M. P. Cornelius, for appellant; Mant\u00f3n Maverick, of counsel.\nEgbert N. McCormick, for appellee." }, "file_name": "0330-01", "first_page_order": 348, "last_page_order": 365 }