Bellows v. Travellers' Ins. Co. of Hartford, Conn.

• Citation: 203 S.W. 978
• Decision Date: 17 May 1918
• Docket Number: No. 19054.,19054.
• Parties: BELLOWS v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
• Court: United States State Supreme Court of Missouri

203 S.W. 978

BELLOWS v. TRAVELERS' INS. CO. OF HARTFORD, CONN.

No. 19054.

Supreme Court of Missouri. In Banc.

May 17, 1918.

1. INSURANCE — ACCIDENT POLICY — CAUSE OF DEATH.

Where insured, in perfect health, was severely beaten by footpads in September, 1912, and there was evidence that the internal effects of the beating caused kidney trouble, which progressed from stage to stage until he died in June, 1913, the jury were justified in finding that death resulted, directly and independently of all other causes, through the injury; the thread of causation not being broken, as a matter of law, by intermediate infection or disease.

2. INSURANCE — TOTAL DISABILITY — "WHOLLY DISABLED."

Under an accident policy undertaking to pay the indemnity named in case of death from injuries within 90 days from the accident, and in cases when the injuries received shall wholly and continuously disable and prevent insured from performing "any and every kind of duty pertaining to his occupation," and death shall result from the injuries during such disability and within 200 weeks from the accident, the disability within the period of which the indemnity is payable in case of death is disability to perform any substantial part of insured's business; for when one is disabled from performing those substantial acts which characterize his occupation, common and subsidiary acts, such as opening letters, and nominal and clerical duties, cease to pertain to it.

3. INSURANCE—QUESTION FOR JURY —DISABILITY.

In action on accident insurance policy containing such a provision, evidence held to make it a question for the jury whether deceased was continuously disabled by injuries from the date of accident until his death.

4. INSURANCE 0669(11)—ACTION—INSTRUCTION—"SUBSTANCE"—"SUBSTANTIAL."

In such action, an instruction, allowing recovery if death resulted from the accident within a period when insured "was substantially disabled from attending to the duties of his occupation," was proper in its use of the word "substantial," for "substance," as its etymology indicates, is that which stands under and supports all phenomena, whether material or mental, the essence of the thing itself, and that element of which the law takes notice in administering concrete justice.

5. INSURANCE — ACTION—INSTRUCTION.

In such action, an instruction allowing recovery if insured's death was caused by bodily infirmity or disease directly resulting from his accidental injuries was erroneous in not requiring proof of continuous disability from the accident until death, although defendant pleaded the continuous disability policy provision in its answer, for thereby defendant went no further than to waive the statement of such provision in the petition by making it for itself.

6. TRIAL—INSTRUCTIONS—CURE BY OTHER INSTRUCTIONS.

Nor was such error cured by an instruction given for defendant that continuous disability was a necessary element to authorize a recovery in case of death from sickness induced by the injury, since, being inconsistent with the instruction given, it simply gave the jury its choice as to which it would obey.

7. TRIAL—INSTRUCTIONS—CURE BY OTHER INSTRUCTIONS.

An instruction, which expressly directs the jury to return a particular verdict upon finding a particular fact, is not rendered harmless by one which tells them not to return such a verdict without proof of another fact, because it is impossible to obey both unless that other fact be found.

Woodson and Bond, JJ., dissenting.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Hattie Mae Bellows against the Travelers' Insurance Company of Hartford, Conn. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover $15,000, including accumulations, on an accident insurance policy issued by the defendant company to Frank L. Bellows, the husband of plaintiff, who is named in the policy as the beneficiary to whom payment should be made in the event of death. The provisions of the policy which are pertinent to the issues made in this appeal are as follows:

"The Travelers' Insurance Company of Hartford Connecticut, does hereby insure Frank L. Bellows against bodily injuries, inflicted directly and independently of all other causes, through external, violent and accidental means (suicide whether sane or insane is not covered) as specified in the following schedule.

"Schedule of Indemnities.

"The principal sum of this policy in the first year is $10,000.00. Increases annually until maximum is $15,000.00.

"Part A. Single Indemnity. Death, Dismemberment and Loss of Sight. If any one of the disabilities enumerated below shall result from such injuries alone, within ninety days from the date of accident, the company will pay the sum specified opposite such disability; or, if such injuries shall, independently and exclusively of all other causes, immediately, wholly and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability and within two hundred weeks from the date of accident, shall result in any one of the disabilities enumerated below, the company will pay the sum specified opposite such disability, and in addition, weekly indemnity as provided in part B to the date of death, dismemberment or loss of sight.

"For loss of life (including accidental death by freezing, gas or poison, but excepting suicide sane or insane) * * * the Principal sum."

Then follows a list of amounts that would be paid in the event of loss of one hand, one foot, one eye, etc., which list has nothing whatever to do with this case and is therefore not set forth in detail. The policy then proceeds as follows:

"Part B. Single Indemnity and Total and Partial Disability. Total Loss of Time. For the period during which the insured shall be immediately, continuously and wholly disabled by injuries effected through external, violent and accidental means as aforesaid, from performing any and every kind of duty pertaining to his occupation, but not exceeding in amount the principal sum, the company will pay a weekly indemnity of * * * $50.00.

"Partial Loss of Time. Or, for the period not exceeding twenty-six consecutive weeks, during which the insured shall be immediately, continuously and wholly disabled by such injuries from performing one or more important daily duties pertaining to his occupation, or for like disability not exceeding twenty-six weeks following total disability, and not extending beyond the limit thereof, the company will pay a weekly indemnity of * * * $25.00.

"But no payment of weekly indemnity shall be made in case of any disability enumerated in part A except as herein provided."

By a schedule attached the policy took effect March 8, 1907, so that at the time of the injuries, from which it is said the assured died, the accumulations amounted to the full $5,000. The petition is in the usual form, asking judgment for $15,000, the amount of the policy and accumulations, with interest. The answer admits the issuance of the policy, the payment of all premiums, and full compliance with its terms as to notice and proof of death, and that the deceased died while it was in full force, and denies that the death of the insured resulted from bodily injuries inflicted directly and independently of all other causes, through external violence and accidental means. It alleged as a further defense that the deceased was not, by reason of such injuries, immediately, wholly, and continuously disabled and prevented from performing any and every kind of duty pertaining to his occupation and that he did not die during the period of such continuous disability, and that his death did not occur within 90 days from the date of the accident, and pleaded the provisions of the policy in that respect. The plaintiff joined issue upon these affirmative defenses by replication. Upon the trial and on the 20th day of February, 1915, there was a verdict for $16,477.50, upon which this judgment was entered. All steps were taken necessary to present the merits in this court.

Up to September 21, 1912, the assured was an exceptionally strong, robust, athletic, healthy man, 53 years old, at least six feet in height, weighing at least 200 pounds, and in appearance was the picture of health. He left his home in Chicago that evening and was heard going to his bedroom at about 1 o'clock that night, but was not seen by any member of his family until the following (Sunday) morning at 6:30 or 7 o'clock, when he was found in bed, his face and back bearing evidence of a brutal attack, evidently made by footpads, who had robbed him of his watch and pocketbook as he was coming home. He had been severely beaten and kicked about the face, back, head, and side. A trail of blood was followed from the front porch to a vacant lot several hundred feet away, where it was found that many tracks had been made in the wet, soft earth at a point that was dark at night by reason of the shadows of buildings near by. Circumstances leave no room for doubt that he was set upon, beaten, brutally kicked, and robbed; that he wandered home, and apparently lay down for a while on the porch with his raincoat folded up as a pillow under his head, and finally made his way upstairs without disturbing the family, none of whom knew of his condition until his son discovered him the next morning.

Dr. Kerlin was called and treated him. He testified to his injuries with much detail. One eye was closed, and there were other wounds about his head and face. He complained of much pain in the chest and back; the muscles were swollen and tender, and it was almost impossible for him to move. It was necessary to administer a sedative in making the examination. His back had been twisted in some way. The injuries on his back were over the kidneys. There was much pain there.

There was much testimony of...