Atherton v. Railway Mail Ass'n

• Decision Date: 10 May 1920
• Docket Number: No. 13428.,13428.
• Citation: 221 S.W. 752
• Parties: ATHERTON v. RAILWAY MAIL ASS'N.
• Court: Missouri Court of Appeals

221 S.W. 752

ATHERTON v. RAILWAY MAIL ASS'N.

No. 13428.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Ada Atherton against the Railway Mail Association. Judgment for defendant, and plaintiff appeals. Affirmed.

Reinhardt & Schibsby, of Kansas City, for appellant.

William C. Michaels, of Kansas City (Haff, Meservey, German & Michaels, of Kansas City, of counsel), for respondent.

TRIMBLE, J.

This is a suit upon an accident insurance policy. The trial court was on the point of sustaining a demurrer to the plaintiff's evidence when the latter took an involuntary nonsuit with leave to move to set the same aside. Such motion was filed and overruled; whereupon plaintiff appealed. The question presented is: Was there evidence entitling the plaintiff to go to the jury?

The policy was issued to Joseph M. Atherton, and his wife, the plaintiff herein, was the beneficiary. The insurance contract contained the usual promise to pay in case of insured's accidental death, which should be construed to be either "sudden violent death from external, violent, and accidental means, resulting directly, independently and exclusively of any and all other causes, or death within one year from injuries received by accident alone," but no payment shoo id be made "unless the accident alone should result in producing visible, external marks of injury or violence suffered by the body" e the insured.

The petition alleged that on December 5, 1916, insured "sustained a bodily injury, to wit, a stroke of paralysis, which was effected by accident alone and through external, violent, and accidental means, to wit, the unexpected, unintended, and unforeseen wrench, strain, and shock caused by the pulling, lifting, hauling, and otherwise handling of very heavy sacks of mail on a mail train operated in Missouri on the Kansas City & Southern Railway, which wrench, strain, or shock, by creating an occlusion in an artery or blood vessel in said Atherton's brain, resulted in paralysis, and which accident alone resulted in producing visible external marks of injury or violence suffered by the body of the said Joseph M. Atherton to wit, extreme pallor of face, profuse and clammy sweat, lack of control of his members, and, within few hours after said strain, wrench and shock, complete paralysis of the right side of the head and body and of the right arm and leg of the said Joseph M. Atherton." The petition as it appears in the abstract of the record omits the portion italicized above, but as plaintiff's brief admits that she, "unnecessarily perhaps, pleaded that the paralysis was produced from the strain through an occlusion in the brain," we state the allegation of the petition with said clause included. However, if the italicized clause had not been pleaded, we think it would make no difference in the disposition to be made of the case. The petition also averred that the said Joseph M. Atherton died on December 13, 1916, "his death resulting solely and wholly from said injury, the said stroke of paralysis."

The answer admitted the issuance of the policy, that plaintiff was the beneficiary therein, and further admitted and stated that on December 5, 1916, insured "suffered a stroke of paralysis; whereby the right side of the head and body and of the right arm and leg of the said Joseph M. Atherton became paralyzed," but denied that said stroke of paralysis was effected by accident alone, and denied that said Atherton's death was accidental or caused through external violent and accidental means, or that any accident resulted in producing visible external marks of injury or violence suffered by the body of said Joseph M. Atherton. Said answer alleged that he died of natural causes; that he was predisposed to apoplexy, and about 3% years before this he had suffered a similar apoplectic or paralytic stroke which at that time affected the left side of his face, body, and members; that he had never fully recovered from said disease of apoplexy, and was suffering therefrom at the time of his death and it was caused thereby. The reply admitted that insured had suffered the previous stroke of paralysis and that it affected his left side, but averred that it also was caused by accident, and denied all other allegations in the answer.

Insured was a man 48 years old, six feet tall, weighed 200 pounds, and was of a florid complexion. He was a railway mail clerk with a night run on the Kansas City Southern from Kansas City to Siloam Springs, Ark. He would go to work at the Union Station in Kansas City about 9:30 p. m., and his run ended at 8:50 the next morning at Siloam Springs. While "laying over" there, he boarded not far from the depot, and, on his return trip he would leave Siloam Springs about 10:30 p. m. and arrive in Kansas City about 8 o'clock the next morning.

In June, 1913, 3% years before his death, he suffered a stroke of apoplexy or paralysis of the left side, on account of which he was off duty for 6 months, then returned to work in the terminal post office in Kansas City in January, 1914, and finally went upon the railway run hereinabove mentioned about June 1, 1915.

All of the witnesses who testified in the case were placed upon the stand by plaintiff. Insured's family physician, who attended. him both in 1913 and in his last illness, testified that one who has had a stroke of paralysis, apoplexy, or cerebral hemorrhage is predisposed that way ever after; he can recover to a certain extent, but can never completely recover. Another physician testified that, where one has had a paralytic stroke, he may entirely recover, but he is predisposed to apoplexy. Plaintiff herself testified that she thought he recovered entirely with the exception that when he was tired he would drag the left foot a little bit, but admitted that in her deposition she had testified that after his former stroke he had not regained his normal physical activity, meaning what she had just stated about dragging his foot. `Another witness, a railway mail clerk who ran with him on the road. prior to his stroke in June, 1913, and who saw him frequently both before and after that time, said he was not as active and alert after 1913 as he was before; that he did not appear to have the right control of his limbs, did not seem to have good control of himself, or "couldn't walk just exactly right." Otherwise insured appeared to be in good health and did his work well, though his wife admits it was not an unusual thing for him to consult a doctor after coming home from his run, and he "most always was tired when coming in off the road."

On Friday, December 1, 1916, at 10:25 a. m., insured finished the run from Siloam Springs to Kansas City, and laid off at home five full days before he again made the run to Siloam Springs. This was an unusual lay-off in length of time, and during that period he called upon his physician twice, complaining of his stomach, and received medicine therefor. These calls on his physician were made on Saturday, December 2d and Tuesday, December 5th. During this time his appetite was not quite as good as it had been. However, he apparently had recovered, was in good spirits, and on Tuesday evening, December 5th, he left his home in Kansas City to go upon his run feeling better than he had for a week.

Insured was "paper man" on his run; that is, he distributed papers instead of letters. The evidence is that on this particular run there were 152 sacks of paper mail "worked" — that is, distributed — so much in fact that the crew were "stuck," or, in other words, did not finish their work in time for the various places they passed, so they had to work all night and up to the moment the train reached Siloam Springs to get their work done. The evidence further shows, however, that the work the crew was "stuck" on was on letters rather than papers; that insured was a paper man, and not a letter man; that, while 152 sacks of papers was somewhat more than usual, it was not larger than two other recent days when 153 and 157 sacks, respectively, were handled. The ordinary run of papers, though, was from 126 to 144 sacks; and it does not appear that the run's work was ordinarily accomplished before the night was over. The sacks of mail weigh from 135 to 165 pounds apiece, and they are thrown halfway into the car by the employé who brings them to the car, and from there the mail clerk has to pile them between stanchions to a height of four or five feet, and then in distributing the papers these sacks are in turn emptied onto a table about three feet high, where they are thrown into the particular sack their respective addresses call for. This necessitates the lifting of these sacks throughout the night, and is hard, exhausting work. Insured had a helper who got off the train at Pittsburg, Kan., about halfway between Kansas City and Siloam Springs, but Nilson took this helper's place. It was the helper's duty to put the sacks on the table, however, unless he was engaged at something else. At Joplin insured received 20 to 25 bags of mail, lifted them one after the other upon the table and distributed the papers, and at Neosho he loaded the sacks of paper mail onto the car, and worked also at distributing the papers received from St. Louis. These Neosho sacks weighed from 135 to 155 pounds each.

At Pittsburg Atherton looked "worried like, just kind of fatigued working so much and heavy lifting." The helper says, "I was about played out myself working there." After leaving Sulphur Springs, Atherton began getting sick. "It was just like any one having a cold sweat, sallow, yellow like, the strain on him, you could tell it had its effect."

When the crew left the car at Siloam Springs, Atherton's gait was labored as though he felt unusually bad and tired. He dragged himself as though in great physical stress.

During the run from Kansas City to...