Freeman v. Loyal Protective Ins. Co.

Decision Date21 May 1917
Docket NumberNo. 12396.,12396.
Citation196 Mo. App. 383,195 S.W. 545
PartiesFREEMAN v. LOYAL PROTECTIVE INS. CO. OF BOSTON, MASS.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Howard County; A. H. Waller, Judge.

Suit by Susie Freeman against the Loyal Protective Insurance Company of Boston, Mass. From a judgment for plaintiff, defendant appeals. Reversed.

Ross J. Ream, of Kansas City, and Sam C. Major, of Fayette, for appellant. Jasper Thompson and A. W. Walker, both of Fayette, for respondent.

TRIMBLE, J.

Plaintiff is the beneficiary in a policy of accident insurance issued to her husband by the defendant company. Insured died while the policy was in force, and defendant refused to pay. Thereupon this suit was brought, resulting in a verdict and judgment for plaintiff in the full amount of the policy, with interest, from which the defendant has appealed.

The petition alleged that in said policy defendant agreed to pay plaintiff the sum of $4,000 if the death of J. M. Freeman, her husband, "should occur, while the policy was in force, as the result, alone and independently of all other causes, of bodily injuries occasioned by external violent and accidental means, leaving upon the body marks of contusion or wound visible to the eye." The answer admitted the execution of the policy and the death of the insured, but asserted that his death was occasioned by disease and not of a cause covered by the policy; also that insured did not sustain bodily injuries from external violent and accidental means which left upon the body marks of contusion or wound visible to the eye.

Freeman was going from place to place in Howard county, driving a team and medicine wagon, engaged in selling medicines. On September 29, 1915, he spent the night at the home of Frank Watts. He appeared to be in good health, ate heartily at both supper and breakfast, and left Watts' home the next morning, September 30th, about 8 o'clock. He drove from there about a mile to the home of R. H. Torbit, having to pass through a gate midway between the two places, and arrived at Torbit's somewhere between 8 and 9 o'clock. He began showing his medicines to Mrs. Torbit, but exhibited difficulty in talking on account of coughing and hacking. To Mrs. Torbit he seemed to be in perfect health, except that he coughed considerably and seemed to have some irritation in his throat. Over the objections and exception of defendant's counsel, Mrs. Torbit was asked the following questions and gave the following answers:

"Q. I will ask you to state to the jury what Mr. Freeman said to you was the trouble with him at the time he was talking to you? A. He said a bug flew into his throat and was causing him considerable discomfort. Q. Did he say anything about his condition? A. He said it seemed it would neither go down nor he couldn't get it up; could neither get it up nor down, is the way he expressed it. Q. State whether or not he indicated the location. A. It seemed it was in the throat here (indicating), is what he said, and would neither go up nor down."

From Mrs. Torbit's testimony, given elsewhere, it appears that Freeman said to her that the bug flew in his throat at the gate, and that he made the statement to her in excusing and explaining his coughing. Insured then left the house and went out on the farm to see Mr. Torbit, and returned in about two hours, but appeared then to be very sick, vomiting and having spells of coughing. He got into his wagon and drove away. From Torbit's, insured drove about two miles to the home of Willard Liggett, arriving there shortly after 12 o'clock. Mr. Liggett met him on his way to the house after he had gotten out of his wagon. Liggett noticed that he was pale, but during the time he was with him did not observe any coughing. Insured asked if he could lie down, saying he was very sick. This testimony was objected to by defendant, but the objection was overruled. Thereupon, over the objections and exceptions of defendant to each, he was asked and answered questions as follows:

"Q. Did he state anything further about his condition? A. He told me the cause of his condition. Q. What did he say? A. He said he had got an insect in his throat or windpipe— I don't remember just the words he used — anyway, he said it seemed to stop somewhere down here (indicating on throat), and he couldn't get it up; that he had vomited and it didn't seem to remove the cause of the trouble; that it seemed to settle there; that he was getting sicker all the time, and that he would like to lie down awhile and see if that would help him."

Mr. Liggett remained at the house only about 30 minutes after insured came. Mrs. Liggett testified that insured came in and was lying down for about two hours and complained of being very sick; that he vomited, complained of being sick at the stomach and of headache and backache. She said his breathing at one time seemed a little unnatural, but she did not hear him cough during the time he was there. Over the objection and exception of defendant, she was allowed to state that insured said "it seemed like an insect had lodged in his throat," and that "he still felt like he could feel an insect or whatever it was in his throat; he vomited and couldn't get it up." From Liggett's, insured drove to his home, and Dr. Smith was called, who arrived about 6 or 7 in the evening. This was September 30th. Dr. Smith found him suffering with a pain over his stomach and having fever. He was not coughing. He gave the doctor a history of his case. The doctor did not examine his chest, nor did he do so the next day or the day after that, as he appeared to be better for two or three days, and the doctor merely called in to see him when he was in the neighborhood visiting other patients. After that, however, either on the following Sunday or Monday, about four days from the first day, the doctor found him complaining of pains in his chest and coughing some, and upon examination of his chest the doctor found evidence of a cavity in the lower lobe of the left lung. From that time on the doctor visited him every day, and sometimes two or three times a day, and examined his lungs fully. He says he found nothing except the cavity until about the 11th day, when they found evidences of the beginning of pneumonia setting up in the lower lobe of the left lung; that there was no pneumonia in the right lung at that time, and he had not found any signs of pneumonia prior to the 11th day. A few days later they found the upper lobe of the left lung was involved, and on the 16th of October the patient died. An autopsy disclosed that both lungs were affected with pneumonia. There was a cavity about four inches in diameter in the left lung from which the tissues had been destroyed and expectorated.

Dr. Lee, who was called in consultation on October 10th, saw deceased three times before he died. His testimony is that at the first time he saw the patient he did not have pneumonia, but that there was an abscess or cavity in his left lung, that when he saw him two days later the cavity had enlarged, and pneumonia was developing in that lung, and on the evening before his death on the 16th, the pneumonia had spread over the entire left lung, and it was solidified and the patient was in a dying condition; that after death autopsies showed both lungs affected with pneumonia.

Both of these physicians testified for plaintiff, over the objections and exceptions of defendant, that in their opinion the probable cause of the pneumonia was the cavity or abscess they found in the lung, and that it was caused by the inhalation of a bug or some foreign substance. No bug or foreign substance was found in the lung; and it is clear, from the testimony of the doctors, that their conclusion that the cavity was caused by the inhalation of a bug or some foreign substance was based upon what the patient had told them in that regard. Their conclusions were reached "from the history of the case" and "from the history and symptoms of the case." Each of them admitted that, leaving out the history of the case and what they had heard, they could not tell what caused the cavity. There is no evidence as to how long this cavity had existed before it was discovered, though the doctors seem to have regarded it as of recent origin. But Dr. Smith said the cavity could have been there long before they found it, and might have been there all of Freeman's life; and Dr. Lee said a cavity or abscess could be attributed to a tubercular trouble, or something of that kind. There can be no question but that the opinions of the plaintiff's experts as to what caused the cavity were based upon the information imparted to them that a bug had flown into the patient's throat, and...

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