73 S.W. 592 (Mo. 1903), Fetter v. Fidelity & Cas. Co.

Citation:73 S.W. 592, 174 Mo. 256
Opinion Judge:VALLIANT, J.
Party Name:FETTER et al. v. FIDELITY AND CASUALTY COMPANY, Appellant
Attorney:Harkless, O'Grady & Crysler for appellant. Ashley, Gilbert & Dunn for respondents.
Case Date:March 18, 1903
Court:Supreme Court of Missouri
 
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Page 592

73 S.W. 592 (Mo. 1903)

174 Mo. 256

FETTER et al.

v.

FIDELITY AND CASUALTY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 18, 1903

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Harkless, O'Grady & Crysler for appellant.

(1) In order to have entitled plaintiffs to recover in this cause, under the express conditions of the policy, and as a condition precedent to their recovery, it must have been shown that death resulted from accidental means independent of all other causes; and the undisputed evidence failing to show this fact, but, on the contrary, conclusively showing that it did not result from accidental means independent of all other causes, the court erred in refusing a peremptory instruction to the jury to return a verdict for defendant. National Ass'n v. Shryock, 73 F. 774; Ins. Co. v. Melick, 65 F. 178; Commercial Ass'n v. Fulton, 79 F. 423; Freeman v. Ass'n, 156 Mass. 351; Hubbard v. Ins. Co., 98 F. 932; Hubbard v. Mut. Acc. Ass'n, 98 F. 930. (2) Death in this case did not result from accidental means. This policy of insurance insured only against death, independent of all other causes, by accidental means, and not from death by result of accident. And under the testimony the death did not result from any accidental means. Feder v. Iowa State Ass'n, 107 Iowa 538. The court specially erred in instruction 3, in informing the jury that the burden of proving that the death resulted from some independent cause was upon defendant, because the express condition of the policy was to pay only upon the death by accidental means in case it was independent of all other causes, and the burden of proof in this respect was upon plaintiffs and not upon defendant. Laessig v. Traveler's Ass'n, 69 S.W. 469; Aylward v. Briggs, 145 Mo. 604; National Ass'n v. Shryock, 73 F. 774.

Ashley, Gilbert & Dunn for respondents.

OPINION

[174 Mo. 258] VALLIANT, J.

Appeal from a judgment of the circuit court of Jackson county in favor of plaintiffs founded on two accident insurance policies issued by defendant on the life of plaintiffs' father.

The petition is in two counts. In the first it is averred that the defendant issued its policy February 21, 1892, whereby it insured the life of plaintiffs' father against bodily injuries sustained through external, violent and accidental means and agreed to pay plaintiffs $ 5,000 if death should result to their father from such injuries, independent of all other causes, within ninety days from the date of the infliction of such injuries. It then goes on to state in detail the accident which it alleges caused the death of their father within less than thirty days from the date of its occurrence. The second count is in form substantially like the first, based on another policy issued November 18, 1893, for $ 6,000. The answer of defendant was a general denial and a special plea that the insured died a natural death, resulting from a diseased kidney. Reply, general denial.

The evidence on the part of the plaintiffs tended to show that W. J. Fetter, their father, whom we will hereinafter call the insured, was past sixty-nine years of age. August 6, 1899, he was at his office, and about five in the afternoon, preparatory to leaving, he and his son, who was with him, attempted to close a window, the upper sash of which had been let down. The sash did not move smoothly, therefore each of them took a window pole, which was designed for the purpose, [174 Mo. 259] and inserting one end under the upper rim of the sash, endeavored to push it in place. But it seemed to be stuck, and required hard pushing to move it. In this effort the upper end of the stick held by the insured slipped off the rim, and the sudden release of its hold had the effect to throw the insured upon his right side against the edge of a table that was in place at the window designed to hold maps and drawings to be used by one standing, and therefore tall enough to strike the insured high on the side. He immediately dropped the stick, turned pale and groaned. In a few minutes afterwards he went home; he was looking tired and pale when he arrived; he took a light repast and went to bed. During the night he passed blood in his urine, and very early in the morning he sought his family physician, Dr. Porter, but did not see him. He returned home about 7:30 o'clock pale and suffering. His physician came and found him suffering pain in the right kidney and passing blood in his urine. August 13th he was taken to St. Joseph's hospital, where an exploratory examination was made by Dr. Binnie, assisted by Drs. Porter and Shy; incision was made in the back, and Dr. Binnie introduced his fingers into the pelvis of the kidney, but found nothing abnormal except the rupture and an enlargement. The patient rallied from the operation and the wound healed from the inside, but the hemorrhage continued as before until his death, which occurred September 2, 1899, less than thirty days from the occurrence of the accident. He died from hemorrhage, from loss of blood. The autopsy held September 4th, revealed a normal left kidney. The right kidney revealed a rupture, and the lower end of that kidney was cancerous, harder than the normal part, and less vascular, that is, less full of arteries and veins that would bleed. The rupture found in the kidney was between the normal and the cancerous parts, or into the healthy tissue; the hemorrhages were from the rupture...

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