Brannaker v. Prudential Ins. Co. of America

• Decision Date: 06 May 1941
• Citation: 150 S.W.2d 498,236 Mo.App. 239
• Parties: KATE BRANNAKER, PLAINTIFF IN ERROR, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT IN ERROR
• Court: Missouri Court of Appeals

150 S.W.2d 498

236 Mo.App. 239

KATE BRANNAKER, PLAINTIFF IN ERROR, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT IN ERROR

Court of Appeals of Missouri, St. Louis

May 6, 1941

Motion for rehearing overruled May 20, 1941.

Writ of Certiorari denied by Supreme Court, June 30, 1941.

Appeal from Circuit Court of the City of St. Louis.--Hon. James E McLaughlin, Judge.

AFFIRMED.

Judgment affirmed.

F. X Cleary and John P. Griffin for plaintiff in error.

(1) The evidence shows that the insured died as a result of a bowel hemorrhage caused by typhoid fever, which resulted from drinking polluted water, not knowing that it was polluted and which water infected thirteen other girls in the party. The court erred in sustaining the defendant's demurrer to the evidence and taking the case from the jury. Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 75 S.W. 1102; O'Connor v. Columbian Nat. Life Ins. Co., 208 Mo.App. 46, 232 S.W. 218; Merrick v. Travelers Ins. Co., 189 S.W. 392; Christ v. Pacific Mutual Life Ins. Co., 312 Ill. 525, 144 N.E. 161; Rissman & Sons v. Ind. Comm., 323 Ill. 459, 154 N.E. 203; Wassmuth-Endicott Co. v. Ind. Comm., 77 Ind.App. 609, 133 N.E. 609; Ames v. Lake Ind. Lumber Co., 226 Mich. 83, 197 N.W. 499; Moore v. Fid. & Cas. Co. of N. Y., 265 P. 207, 203 Cal. 465, 56 A. L. R. 860; Gholke v. Hawkeye M. Ass'n, 198 Iowa 144, 197 N.W. 106; Pixley v. Ill. C. M. Ass'n, 195 Ill.App. 135; Sutter v. Mass. Bond & Ins. Co., 215 Ill.App. 341; Townsend v. Com. Trav. M. Acc. Assn., 231 N.Y. 148, 131 N.E. 871; Bailey v. Interstate Cas. Co., 8 A.D. 127, 40 N.Y.S. 513; Hodgson v. Preferred Acc. Ins. Co., 165 N.Y.S. 293; Carter v. Standard A. Ins. Co., 65 Utah 465, 238 Pa. 259, 41 A. L. R. 1495; Ry. Mail Assn. v. Dent, 213 F. 981, C. C. A. 387; McNally v. Maryland Cas. Co., 298 Pa. 721, 162 Wash. 321; Bosworth v. Met. L. Ins. Co., 114 W.Va. 663, 173 S.E. 780; Zurich Gen. A. & L. Ins. v. Flickinger, 33 F.2d 853, 68 A. L. R. 161; Schleicher v. Gen. A. F. & L. Ass'n Corp., 240 Ill.App. 247; Vollroth v. Cent. L. Ins. Co., 243 Ill.App. 181; Cantrall v. Great Am. Cas. Co., 256 Ill.App. 47; Int. Trav. Assn. v. Yates, 29 S.W.2d 980; Woods v. Provident L. & A. Ins. Co., 240 Ky. 398, 42 S.W.2d 499; Brown v. Cont. Cas. Co., 161 La. 229, 108 So. 464; Wheeler v. Title Guaranty & Cas. Co., 265 Mich. 296, 251 N.W. 408; Standard A. Ins. Co. v. Van Altena, 67 F.2d 836; Iowa S. T. M. Assn. v. Lewis, 257 F. 552, 168 C. C. A. 536; Interstate B. M. Assn. v. Lewis, 257 F. 241, 168 C. C. A. 325; Aetna L. Ins. v. Wicker, 240 F. 398, 153 C. C. A. 324; Aetna L. Ins. v. Brand, 265 F. 6; Bus. Men's Assn. v. Schiefelbusch, 262 F. 354; U. S. Cas. Co. v. Griffin, 186 Ind. 186, 114 N.E. 83; Hood v. Maryland Cas. Co., 206 Mass. 223, 92 N.E. 329; Sullivan v. Mod. Brotherhood of Am., 167 Mich. 524, 133 N.W. 486; Nax v. Travelers Ins. Co., 130 F. 985; Horton v. Trav., 45 Cal.App. 462, 187 Pa. 1070; Miller v. Fidelity & Cas. Co., 97 F. 836; Hornby v. State Life Ins. Co., 106 Neb. 5757, 184 N.W. 84.

Fordyce, White, Mayne, Williams & Hartman, William H. McBratney, Michaels, Blackmar, Newkirk, Eager & Swanson and Kenneth E. Midgley for defendant in error.

Ralph W. Hyatt of counsel.

(a) Christenson v. Met. Life Ins. Co. (Mo. App.), 102 S.W.2d 682; Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 120 N.E. 86, 13 A. L. R. 875; State ex rel. Prudential Ins. Co. of America v. Shain et al., Judges, 344 Mo. 623, 127 S.W.2d 675; Gasperino v. Prudential Ins. Co. of America, 107 S.W.2d 819; Burns v. Employers' Liability Assur. Corp., 134 Ohio St. 222, 16 N.E.2d 316; Bryant v. Continental Casualty Co. (Tex. Sup. Ct.), 182 S.W. 673; Chase v. Business Men's Assurance Co. (10 C. C. A.), 51 F.2d 34; Stedman v. U. S. Mutual Accident Ass'n, 123 N.Y. 304, 25 N.E. 399, 9 L.R.A. 617. (b) It is necessary to show bodily injuries resulting solely from external, violent and accidental means, and there can be no recovery upon these policies without a showing that the death ultimately resulted from an accidentally and violently inflicted bodily injury. Christ v. Pacific Mutual Life Ins. Co., 144 N.E. 161, 312 Ill. 525; Burns v. Employers' Liability Assur. Corp., 134 Ohio St. 222, 16 N.E.2d 316. (c) It is necessary to show, in order to recover upon such a policy, that the bodily injury ultimately resulting in the death of the insured was caused by accidental, external and violent means. Mutual Life Ins. Co. v. Scheukat, 62 F.2d 236; O'Connor v. Insurance Co., 232 S.W. 218, 208 Mo.App. 46; Grosvenor v. Fidelity & Casualty Co., 102 Neb. 629; Zurich Insurance Co. v. Flickinger, 33 F.2d 853; Wood v. Insurance Co. (Ky.), 42 S.W.2d 499; O'Brien v. Massachusetts Bond & Ins. Co. (8 C. C. A.), 64 F.2d 33. (d) It is necessary to show, in order to recover under these policies, that a fatal disease must have resulted from antecedent bodily injuries sustained accidentally. Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907; Zack v. Fidelity & Casualty Co. (Mo. App.), 272 S.W. 995; Fidelity & Casualty Co. v. Thompson (8 C. C. A.), 154 F. 484; Lincoln Nat. Life Ins. Co. v. Erickson (8 C. C. A.), 42 F.2d 997; Industrial Comm. of Ohio v. Hosafros, 191 N.E. 832, 47 Ohio App. 261; Dunn v. Standard Life & Accident Ins. Co., 197 Mo.App. 457, 196 S.W. 100; Kimball v. Massachusetts Accident Co. (R. I.), 117 A. 228, 24 A. L. R. 726; Maryland Casualty Co. v. Spitz (3 C. C. A.), 246 F. 817; Ramsey v. Fidelity & Casualty Co., 143 Tenn. 42, 223 S.W. 841, 13 A. L. R. 651; Prudential Insurance Co. v. Herndon, 151 S.E. 399, 40 Ga.App. 692; Flood v. The United Commercial Travelers, 268 N.W. 767, 276 Mich. 648.

SUTTON, C. Hughes, P. J., and McCullen and Anderson, JJ., concur.

OPINION

SUTTON, C.

--This is an action on three policies of insurance issued by defendant on the life of plaintiff's daughter, Bernice Brannaker. Ordinary death benefits were paid, and this action is to recover accidental death benefits. Each of the policies contains the agreement that, "upon receipt of due proof that insured has sustained bodily injury, solely through external, violent, and accidental means, resulting in the death of the insured within ninety days from the date of such bodily injury, the company will pay, in addition to any other sums due under this policy, a sum equal to the face amount of insurance stated in this policy." Plaintiff is the beneficiary named in the policies.

Plaintiff in her petition charges that "the insured died as the result of external, violent, and accidental means, to-wit, accidentally and unintentionally drinking polluted and poisonous water containing poison or germs which caused her death by infecting and perforating her stomach and intestines."

The cause was tried to a jury. At the close of plaintiff's case the court at the instance of defendant gave to the jury an instruction in the nature of a demurrer to the evidence. Plaintiff took an involuntary nonsuit, and later unsuccessfully moved to set the same aside. She has brought the case here by writ of error.

The insured was a member of a church social group in St. Louis called the Sodality Girls, which met once a month at the church on the first Monday. At the May meeting in 1933, it was arranged that the girls would go on a hike on May 21st. On that day about thirty of the girls met at the church and left about eight o'clock for their outing. They took the street car to the end of the line at Meramec Highlands in St. Louis County and walked from Meramec Highlands to the Meramec Quarry. They all had their lunches with them.

Four witnesses testified concerning several of the girls drinking water. One said some, including insured, drank perfectly clear running water about twenty feet from the quarry pit. Another said that they drank running water that happened to be clear, but couldn't say whether it was in the quarry or where it was. Another said that they found and followed a stream for a half mile and drank clear water there. Another testified that they found a stream and knew that the water wouldn't be very good there and followed it to its source about a mile from the quarry where it was bubbling out of a rock. They said they didn't think the water would be very good, but wanted it, drank some, and it seemed all right. There was a little stand near the quarry where soda water was kept covered with ice in an old wooden ice box, and some of the girls drank that.

Some ten, twelve, or thirteen of the girls who went on the trip became sick with typhoid fever ten days or two weeks later. The insured became sick on June 8th or 10th.

Plaintiff put in evidence a certificate of death made by the attending physician, showing that the insured died on June 22, 1933, and that the principal cause of death was typhoid fever, and the contributory cause was hemorrhage and perforation of the bowel. Plaintiff also put in evidence certificates of death, showing that two other girls who went on the outing died of typhoid fever, one on June 22, 1933, and the other on July 1, 1933.

According to the medical testimony given on behalf of plaintiff, the period varies after water polluted with typhoid germs is taken into the stomach before the germs take effect. The usual time is from a week to a month depending on how rapidly the typhoid germs get through the intestines into the blood stream. There have been cases of three days, seven days, and ten days, but they run as high as a month before the symptoms make themselves known. The germs are taken with food or drink. The stomach does not destroy the germs, and they pass into the intestines. Typhoid fever is a disease of the small intestines. It is an acute, infectious, contagious, disease. The germs affect the intestines by setting up an inflammation in the intestines which involves the mucous membrane...