Beile v. Travelers' Protective Ass'n

• Decision Date: 04 March 1911
• Citation: 135 S.W. 497,155 Mo. App. 629
• Parties: BEILE v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.
• Court: Missouri Court of Appeals

135 S.W. 497

155 Mo. A. 629

BEILE v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

St. Louis Court of Appeals. Missouri.

March 4, 1911.

1. INSURANCE (§ 787)—ACCIDENT INSURANCE — "ACCIDENT.

Death by "accident," within an accident benefit certificate stipulating for the payment of a specified sum to the beneficiary in case of death of the member by accident, means death which is not the natural and probable consequence of the act causing it.

2. INSURANCE (§ 787)—ACCIDENT INSURANCE —"ACCIDENTAL DEATH."

Death from chloroform, administered by physicians preparatory to a surgical operation, resulting from defects of the heart and other organs, is "accidental" within an accidental benefit certificate stipulating for the payment of a specified sum in case of the death of insured by accident.

3. INSURANCE (§ 787)—ACCIDENT INSURANCE —EXCEPTIONS—"ACCIDENTAL DEATH."

An exception in an accident benefit certificate stipulating that insurer shall not be liable for injuries fatal or otherwise resulting from any poison or infection or from anything accidental or otherwise taken, administered, absorbed, or inhaled, does not include medicine, though containing poison, administered in good faith to alleviate physical pain, if it results in unexpected and unintentional death.

4. EVIDENCE (§ 571) — OPINION EVIDENCE— WEIGHT.

In an action on an accident benefit certificate exempting insurer from liability for death caused wholly or in part by a bodily or mental infirmity, the jury must determine the cause of death, though scientific propositions are involved, and they may accept or reject the testimony of physicians.

5. INSURANCE (§ 817)—ACCIDENT INSURANCE —BURDEN OF PROOF.

A beneficiary suing on an accident benefit certificate stipulating for the payment of a specified sum on the death of insured by accident and exempting insurer from liability for

death caused wholly or in part by bodily or mental infirmity has the burden of proving that insured's death was accidental, and, where he makes out a prima facie case, the burden is on insurer to prove that death resulted from a cause within the exception.

6. INSURANCE (§ 819)—ACCIDENT INSURANCE —ACTION—EVIDENCE.

Where, in an action on an accident benefit certificate stipulating for the payment of a specified sum on the death of insured and exempting insurer from liability for death caused wholly or in part by bodily or mental infirmity, plaintiff showed that insured was in apparent good health, that chloroform was administered to him preparatory to a surgical operation, that he died while the chloroform was being administered, that in the opinion of an attending physician the direct and proximate cause of death was acute dilatation of the heart immediately caused by the chloroform, and that insured's diseased condition did not contribute to his death, plaintiff established a prima facie case of death by accident.

7. INSURANCE (§ 726)—ACCIDENT INSURANCE — CONTRACTS — CONSTRUCTION.

An accident benefit certificate issued by a fraternal beneficiary association must be construed strictly against insurer, and the expressions contained in the certificate must be defined according to the ordinary and usual understanding of their signification.

8. INSURANCE (§ 787)—ACCIDENT INSURANCE — CONTRACTS — CONSTRUCTION—"SURGERY" — "SURGICAL" — "TREATMENT"—"REMEDY" — "SURGICAL TREATMENT."

Where, in an action on an accident benefit certificate stipulating that insurer should not be liable for death resulting from surgical treatment, the evidence showed that insured died while chloroform was being administered preparatory to an operation, and an attending physician testified that the proximate cause of death was acute dilatation of the heart immediately caused by the chloroform, and that insured's diseased condition did not contribute to his death, the jury could find that surgical treatment did not include the administering of chloroform; "surgery" being defined as the branch of the healing art that relates to external injuries, deformities, and other morbid conditions to be remedied directly by manual operations, "surgical" being defined as being of or pertaining to surgery, "treatment" meaning the act or manner of treating, "remedy" being defined as something used for the cure or relief of bodily disease, and "surgical treatment" meaning treating a disease by means of surgery.

Appeal from St. Louis Circuit Court ; Virgil Rule, Judge.

Action by Rose Belle against the Travelers' Protective Association of America. From an order setting aside a verdict for plaintiff, she appeals. Reversed and remanded.

Suit to recover $5,000 upon an accident benefit certificate issued to Harry F. Belle, by the defendant, a fraternal beneficiary association organized under the laws of Missouri. The plaintiff, widow of Beile, is the beneficiary. There was a verdict for $5, 295, the amount of the policy and interest; but on motion of defendant the trial court granted a new trial, and the plaintiff has appealed. The petition contains the usual averments, and alleges that on or about January 16, 1907, "the said Harry F. Beile was accidentally killed by chloroform while the same was being administered to him by a physician preparatory to performing a surgical operation upon him for fistula," and prayed judgment for $5,000, the amount of benefits provided by the constitution and by-laws to be paid in case of accidental death. The defendant filed an answer containing a specific denial that Beile was accidentally killed and then a general denial. It next contained the following plea: "Defendant says, among other things, it was provided, in the contract set out by defendant's petition commonly known as `Certificate of Membership,' that defendant would not be liable where the death or disability to the member was the result of surgical treatment. And defendant alleges the fact to be that on or about the 16th day of January, 1907, the said Henry F. Beile was placed upon an operating table to be operated upon for fistula, and that preparatory to said operation and as part of the surgical treatment chloroform was administered to him from the effects of which he collapsed and instantly died."

This answer was withdrawn, and a demurrer to the petition filed and overruled. Defendant then filed an answer, which denies all the allegations of the petition, then admits the character of its organization, then admits issuing the benefit certificate, and admits that Beile died on January 16, 1907, but denies that his death was accidental or the result of accidental causes. The answer then pleads that by the terms of the certificate the defendant was exempted from liability if Beile's death was "caused wholly or in part by any bodily or mental infirmity or disease," and then alleges that his death was so caused, and therefore the defendant is not liable. It then pleads that by the terms of the certificate the defendant was exempted from liability if Beile's death resulted "from surgical treatment," and then alleges that it did so result, and therefore the defendant is not liable. It then pleaded that by the terms of the certificate "defendant would not be liable to the said Henry F. Beile for any injury, fatal or otherwise, resulting to him from anything accidentally or otherwise taken, administered, absorbed or inhaled," and then alleges that his death did so result, and therefore defendant is not liable. Reply a general denial of allegations of new matter. At the trial the benefit certificate was admitted in evidence. It entitled Beile "to all the benefits accruing from such membership, under the provisions of the constitution and bylaws of this association, subject to the conditions printed on the back hereof, and the application for membership, all of which are made a part of this certificate. Benefits in case of death payable to Rosa Belle his wife." It was admitted that the constitution and by-laws contained a provision as follows: "Article nine, section two. Five thousand dollars shall be paid to the beneficiaries named in the certificate of any deceased member in case of death by accident." The conditions on the back of the certificate, so far as pleaded by the defendant, are as follows: "That the Travelers' Protective Association of America shall not be liable * * * in case of * * * death or disability when caused wholly or in part by any bodily or mental infirmity or disease * * * or to cases of * * * injury, fatal or otherwise, resulting from any poison or infection, or from anything accidentally or otherwise taken, administered, absorbed or inhaled, disease, death or disability resulting from surgical treatment." Defendant admitted that due proof of Beile's death was made to it by the plaintiff.

The abandoned answer of defendant was admitted in evidence as an admission against its interest. The evidence of the plaintiff showed that on January 16, 1907, Harry F. Beile voluntarily permitted chloroform to be administered to him by a physician for the purpose of rendering him unconscious to the pain of a comparatively slight but painful cutting operation then and there to be performed upon him for fistula of the anus. There were two physicians present, Dr. Bailey, who was to perform the operation, and Dr. Ward, who was to administer the chloroform. The method adopted was the "drop method," which consists in dropping chloroform gradually upon a mask placed over the man's nostrils. From 20 to 30 drops had fallen upon the mask when Beile collapsed and instantly died, without having had the knife applied to him and without surgical treatment having begun, unless administering chloroform was "surgical treatment." He was apparently in good health except the fistular condition of the anus, and up to the day before he died was busy going around the city attending to his business as a cigar drummer. Dr. Ward testified that he examined Beile's heart before administering the chloroform, and he seemed quite nervous and did not...