Beckerleg v. Locomotive Engineers' Mut. L. & Acc. Ins. Ass'n

• Decision Date: 01 July 1925
• Docket Number: No. 3683.,3683.
• Citation: 274 S.W. 917
• Parties: BECKERLEG v. LOCOMOTIVE ENGINEERS' MUT. LIFE & ACCIDENT INS. ASS'N.
• Court: Missouri Court of Appeals

274 S.W. 917

BECKERLEG v. LOCOMOTIVE ENGINEERS' MUT. LIFE & ACCIDENT INS. ASS'N.

No. 3683.

Springfield Court of Appeals. Missouri.

July 1, 1925.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action Ritta Beckerleg against the Locomotive Engineers' Mutual Life & Accident insurance Association. Judgment for plaintiff, and defendant appeals. Affirmed.

Barbour & McDavid and E. A. Barbour, Jr., all of Springfield, for appellant.

Page & Mason and John Schmook, all of Springfield, for respondent.

COX, P. J.

Action upon an accident policy for the death of John Beckerleg, the husband of plaintiff. The plaintiff recovered, and defendant appealed.

The evidence shows that the deceased, John Beckerleg, was a locomotive engineer, and had served in that capacity for about 50 years. He had been a member of the Brotherhood of Locomotive Engineers ever since it was organized for more than 40 years. The defendant is an incorporated organization that issues life and accident policies on locomotive engineers only. An accident policy for $2,000 was issued by defendant to John Beckerleg on the 20th of November, 1909, in which the plaintiff was the beneficiary, and which policy was in force at the time of his death, and is made the basis of this suit.

On March 4, 1922, Mr. Beckerleg was in charge of an engine on his regular run from Ft. Smith, Ark., to Springfield, Mo. At a point near Verona, Mo., a superheater flue in the boiler of the engine bursted, and when the train reached Aurora, Mo., a few miles further on, the engine became disabled and was stopped. When the engine stopped, the fact that the superheater flue had bursted caused steam to escape into the cab of the engine where Mr. Beckerleg was located, and the contention of the plaintiff is that this steam enveloped Mr. Beckerleg, and was inhaled by him, and was so hot that it burned his mouth, throat, and bronchial tubes, and caused an infection there which finally produced pleurisy, from which he died April 9, 1923. The contention of defendant is that death did not result from this accident.

The assignments of error are as follows: That the court erred in submitting the case to the jury; that error was committed in giving instructions A and B for plaintiff; error in admitting certain evidence; refusal of the court to grant a new trial on the ground that the jury did not follow the instructions of the court.

The plaintiff's testimony tended to show that deceased was 70 years old at the time of his death, and that prior to the accident he was a very strong, active, and healthy man for one of his age. After the accident, he declined in health, and was never as strong and active as before; had a cough that never entirely left him, and had more or less pain in the right lung or side; could not sleep reclining in a natural position. The chief reliance of plaintiff for proof that the accident caused the death of Mr. Beckerleg was the testimony of the family physician, Dr. Reinhoff, who attended him immediately after the accident and regularly from that time to his death, except from the beginning of November, 1922, to March, 1923. We shall therefore quote at some length from this doctor's testimony. He testified on his examination in chief as follows:

"I was called to see him in the month of March, 1922; it was on the 7th of March. He was sick. He was coughing severely. He had a severe swelling of the neck and could hardly breathe at times, and upon examination I found a severe acute inflammation of the throat, the larynx, and the bronchial tubes on both sides. His tongue was somewhat swollen, puffed up somewhat. I had seen him quite often before that, because Mrs. Beckerleg wasn't feeling well, and I would go out and see her and would see him sometimes. I had known him for a great many years. He was an unusually strong man for his age; he had a little defect in speaking and would stutter a little, but outside of that he was a healthy man. He had, once in a while, little attacks of indigestion and little attacks of cold just as anybody has; otherwise was a healthy man, always working and active. I treated him at that time for the matters I have testified about. I was not able from my examination to discover or determine what caused the condition I found him in that day. I could only say it was an unusual, severe bronchial inflammation. He was lying down and wasn't able to get up. I continued to treat him.

"He got better, but ever afterwards he would always have more or less severe coughing spells. If you will allow me to refresh my memory, I don't recall just now all of the details. [Witness refers to memorandum.] Now this happened March 7th; up to the 15th of March he suffered greatly, and for about a' week he was confined to his house and mostly to his bed; later on he was able to be about again, and he even forced himself to resume his work as a railroad engineer. Those coughing spells, more and more accompanied by attack of shortness of breath and pains in the chest, especially in the right side, would apparently get better for a while, but after short intervals would come back with renewed vigor. Such recurrences happened, for instance, in the latter part of April, and first half of May, 1922, again in the latter part of July of the same year, toward the end of August again, and especially again in the latter half of October and the first days of November of 1922. During these attacks I attended him; then I didn't see him any more from the beginning of November until in March the next year.

"Q. Now, how about whether he could recline, lie down to rest, could he do that with comfort after the accident? A. He could for a while do that way; later on he got worse and worse, and when I saw him again in March, 1923, he was unable to lie down. He couldn't get his breath at all that way. He had attacks of suffocation almost continuous and very severe, causing him to sit up at night in order to get relief in breathing and some rest. His feet commenced to swell (oedematous), and his general nourishment became greatly impoverished. I examined him as much as I could, and found that the right lung was not functioning at all— the right side of the chest presented what we call a complete dullness—and that there was no, or at least hardly any, air passing through his right lung. The heart was" noticeably pushed over to the left side. Repeated examinations made during the following days left no doubt as to the presence of fluid, either of serum or of pus, either in the pleural cavity or in the sight lung itself. The patient, after continued persuasion, finally agreed to have a trial puncture made to verify the diagnosis, and if so to lave the fluid drawn off. On the very morning, on April 9, 1923, when necessary arrangements had been made, and I arrived at his home for that purpose, the patient had had another severe attack of suffocation, and had suddenly expired; and then, in order to prove my opinion about being right, or not, I got permission after he was dead to explore that lung. The undertaker helped me, and we put a tube in there, and then we let out about a quart of milky (so-called sero-perulent) fluid from the right pleural cavity. The lung was not clear yet, so that the sudden death was due to the effects of pleurisy with a large pleural effusion in the right pleural cavity. Such cases come on very gradual; this filling up of the lungs and pleural cavity comes very gradual. Such pleurisies are, according to general experience, due to infections originally starting either in the lung or in the bronchial tubes and gradually affecting the lung tissue itself, and through it the covering pleura. Their beginning is frequently obscure and slow, and so is their progress. Sudden deaths in pleurisy with large quantities of fluid in the cavity are not rare occurrences, probably due to the extreme compression of the lung or of the dislocated heart.

"Q. You may state now, in the condition you found him on March 7, 1922, and from then on to his death, whether his death could have been caused by the inhalation of scalding steam on the night of March 4, 1922? A. Well, if he inhaled scalding steam into the bronchial tubes, that would be very reasonable to explain that severe bronchial trouble which I saw him on March 7th.

"Q. And the cause of his death? A. The cause of his death."

On cross-examination, he testified that the muse of his death was pleurisy. He also identified a statement he had made in March, 1922, shortly after the injury, that was sent to defendant as part of the proof of Mr. Beckerleg on an application under this same policy for loss of time caused by this same accident and resultant injury, in which the doctor stated that injury was "acute bronchitis." The doctor also identified' a death certificate signed by him soon after the death of the insured, in which he stated that the cause of death was "pleurisy of the right side with severe effusion," and that the secondary or contributory cause was "la grippe and chronic myocarditis." Myocarditis was explained to mean a weakening of the heart muscles. He also testified that deceased had been afflicted with both la grippe and myocarditis before this accident, and the effects of both continued present with deceased to the time of his death. He also explained the relation of the bronchial tubes to the lungs as the passageway leading into the lung air cells; that the la grippe probably caused the myocarditis. When asked if, in his opinion, the pleurisy would have resulted fatally had it not been for the effect of the la grippe, he answered "I don't know; that was what contributed to it." Further, on the same question, "I can't say; pleurisy might have killed him anyway. La grippe caused that condition of the heart." The deceased was in the Frisco Hospital from February 17, 1923, to March 25, 1923. Dr. Reinhoff saw him again on March 25, 1923, the day he was brought home from the hospital, and he...