Beile v. Travelers Protective Association of America

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

135 S.W. 497

155 Mo.App. 629

ROSA BEILE, Appellant, v. TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, Respondent

Court of Appeals of Missouri, St. Louis

March 4, 1911

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--Suit to recover five thousand dollars upon an accident benefit certificate issued to Harry F. Beile, 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 $ 5295, 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 five thousand dollars, 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This answer was withdrawn and a demurrer to the petition filed and overruled.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 B. 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 by laws 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 Beile 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 twenty to thirty 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 appear to have what witness would call "a first-class heart, that is, a perfectly normal heart," the valves of the heart appearing "imperfect," but witness considered "the heart of sufficient strength to stand the administration of an anesthetic," and considered it safe to give him chloroform. Witness discovered no other imperfections of the heart and made no tests as to any other organs. Dr. Bailey testified that after careful examination and questioning of Beile he ascertained that he drank more than was good for him, told him that physicians had to be more cautious in administering an anesthetic to persons who were in the habit of drinking to excess, and suggested a local anesthetic, such as cocaine, as a safer means.

An autopsy made of Beile's body revealed that the pleural cavity was entirely obliterated by adhesions; the right side of the heart dilated, with imperfect valves, and the left side hypertrophied; the liver was large and congested; the spleen was about four times its normal size and congested; the left kidney was enlarged and congested, had a stone in it and was cystic, degenerated; the right kidney was almost entirely absorbed or degenerated. The dilatation of the heart was caused by the administering of the chloroform. The other symptoms were chronic.

As to whether the death of Beile was due to the administration of the chloroform or was caused wholly or in part by infirmity or disease the physicians testified in effect as follows:

Dr. Ward on his cross-examination by defendant testified that Beile's ability to take chloroform depended to some extent on the condition of his organs, but it might safely be administered with abnormal conditions present. That ordinarily twenty to thirty drops of chloroform would not produce death in a person of absolutely normal physiological condition, but it might. Abnormal conditions would have a bearing, in part contribute, but, in his opinion, Beile's death was not due to them. Upon re-direct examination, he testified that he did not think Beile would have died at that time if chloroform had not been administered, and that in his (the witness') opinion, the immediate direct cause of his death was, that paralysis of the pneumogastric nerve stopped his heart beating. Fright might have been the immediate cause of the paralysis but witness is the opinion that it was the chloroform. Upon re-cross examination he said that if these conditions had not existed his chances would have been better, but a few drops may paralyze the pneumogastic nerve and cause sudden death, even of a perfectly healthy man, without any pathological conditions of the organs whatever.

Doctor Bailey testified for plaintiff that in his opinion the immediate, direct and proximate cause of Beile's death was acute dilatation of the heart and that the immediate cause of the dilatation of the heart was the chloroform. Upon cross-examination he stated that the chronic condition of the man's functions as disclosed by the autopsy was not exactly normal, and undoubtedly reduced his vitality and his ability to stand the chloroform, but he does not think that it contributed to the death; thinks that it had nothing to do with causing Biele's death, which was caused by acute dilation of the heart. That the kidneys, the heart, the spleen and liver have nothing to do with acute dilatation of the heart, and had nothing to do with Beile's death. That there is no relation between the function of the kidneys and the functions of the heart, in a sudden death like Beile's. That Beile's diseased condition did not produce his death and was not in part a cause of the death. That "there are really as many deaths caused from anesthetics where there are no such conditions existing, and which cannot be explained by any one." The direct cause of Beile's death was acute dilatation of the heart, and it was due to psychic shock, produced by reflex action, from the laryngeal nerve in the larynx. This psychic shock is not necessarily brought about by a diseased condition of the heart but the weakness of...