Brock v. American Central Life Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Campbell
• Citation: Brock v. American Central Life Ins. Co., 44 S.W.2d 200 (Mo. App. 1931)
• Decision Date: 07 December 1931
• Docket Number: No. 17306.,17306.
• Parties: BROCK v. AMERICAN CENTRAL LIFE INS. CO.

44 S.W.2d 200

BROCK v. AMERICAN CENTRAL LIFE INS. CO.

No. 17306.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from Circuit Court, Carroll County.

Action by Rose Brock against the American Central Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Franken & Timmons, of Carrollton, and McAllister, Humphrey, Pew & Broaddus, of Kansas City, for appellant.

Guy Whiteman, of Norborne, and S. J. & G. C. Jones, of Carrollton, for respondent.

CAMPBELL, C.

On June 30, 1919, defendant issued to Claud Brock a policy of life insurance in the sum of $2,500, in which his wife, the plaintiff herein, was named as beneficiary. An instrument called "supplemental agreement" was attached to and formed a part of the policy. It is therein provided that defendant will pay double the face amount of the policy, plus $50 for every $1,000 thereof, in event the death of the insured occurred in direct consequence of bodily injury effected solely through external, violent, and accidental means, and provided further that the agreement to pay an increased amount does not cover "death resulting directly or indirectly from * * * poisons."

Insured died January 14, 1930. The defendant paid the named beneficiary the face of the policy and denied liability upon the supplemental agreement. Thereupon plaintiff brought suit alleging that the death of the insured resulted solely through external, violent, and accidental means, to wit: "He was overcome and suffocated or asphyxiated by accidentally inhaling the fumes and gases escaping from the exhaust from * * * automobile."

The pleaded defense, so far as is necessary here to state, is that the death of the insured resulted "directly or indirectly from carbon monoxide gas, a poison," and therefore the defendant was not liable for the alleged accidental death of the insured.

Plaintiff recovered judgment for the amount sued for, and the defendant has appealed.

The single question brought here by this appeal is, Did the court correctly rule the request to direct verdict in favor of the defendant?

In support of the contention that the court should have directed verdict for the defendant, counsel argue that the death of insured resulted directly from carbon monoxide gas, a poison; that the court is bound to take judicial notice that carbon monoxide gas is a poison, and that death caused thereby is a death from poison, and hence not covered by the supplemental contract.

The provisions of the supplemental contract are not ambiguous, and therefore, if insured's death resulted directly or indirectly from carbon monoxide gas, a poison, plaintiff is not entitled to recover.

On the evening of January 14, 1930, insured, in an effort to thaw ice which had formed in the radiator of his automobile, started the motor in operation and closed the doors of the garage in which the automobile was standing. In about thirty minutes thereafter plaintiff went to the garage, opened the door, and called to insured, but he did not reply. She then went into the garage and found insured on the floor unconscious. The garage was filled with smoke, and the lantern which insured had taken with him was burning dimly. Insured was taken from the garage into his dwelling. Dr. Cole was called, and arrived a few minutes thereafter. Insured died before he arrived.

Dr. Cole, at the trial, testified that he found decedent lying on his abdomen on the floor; that his face and eyes were congested; that "his face was red"; that in his opinion death was caused by carbon monoxide gas from the fumes of the car; that that suffocated him.

"Q. Well, how was his death caused, then, in your opinion? A. By asphyxiation."

On cross-examination he testified that in his opinion death was caused by carbon monoxide gas; that carbon monoxide gas is a poison.

Dr. Henry Conway testified, in answer to a hypothetical question, that death in his opinion was caused by asphyxiation.

"Q. Under the conditions which have been stated to you, doctor, tell the jury whether or not this man was asphyxiated or poisoned? A. He was asphyxiated."

On cross-examination he said that he knew what carbon monoxide gas is; that it will not produce death when there is sufficient oxygen to overcome its effects; that "any gas that would replace the oxygen, which is not life giving, would produce death."

"Q. Then what do you call any gas that does that? Isn't it a poison, doctor? A. No, sir.

"Q. What is poison then? A. A poison is a gas or some substance which will produce death by making some change in the body metabolism. * * *

"Q. Well, if they were sufficient to produce death, wouldn't they be poisonous? A. Not necessarily so. It would not be. If it were sufficient to produce death, it might be that you would call, say water, for instance — one drowns but you wouldn't call water poison. It excludes the oxygen from the lungs.

"Q. Well, doctor, there isn't any evidence here that he took any water in his lungs. If he took enough gas into his lungs to produce his death, wouldn't you say that was poisonous gas? A. No, sir, I would say it was asphyxiation. * * *

"Q. You tell the jury, then, that regardless of the fact that he was found there dead, that he didn't inhale poison into his system? A. Not under ordinary circumstances, it would not be poison, no."

He further stated that, if decedent's face was flushed, that "would indicate that he did not die of carbon monoxide poisoning."

Dr. R. M. Benson testified on the part of plaintiff in answer to a hypothetical question in which the proven facts were included; that in his opinion the...