Brock v. Firemens Fund of America Ins. Co.

• Decision Date: 10 August 1982
• Docket Number: No. 43001,43001
• Citation: 637 S.W.2d 824
• Parties: Sophia BROCK, Appellant, v. FIREMENS FUND OF AMERICA INSURANCE CO., et al., Respondent.
• Court: Missouri Court of Appeals

Page 824

637 S.W.2d 824

Sophia BROCK, Appellant, v. FIREMENS FUND OF AMERICA INSURANCE CO., et al., Respondent.

No. 43001.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 10, 1982.

Mogab, Hughes, Attorneys, Inc. by Richard L. Hughes, St. Louis, for appellant.

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney by William L. Davis, M. Jane Christen, St. Louis, for respondent.

SATZ, Judge.

In this cause, plaintiff Sophia Brock, widow of Elmo L. Brock, sued defendant, Aetna Life & Casualty Insurance Company for accidental death benefits under a group life insurance policy issued by defendant to Western Auto Supply Company, Elmo Brock's employer. Defendant did not dispute that Elmo Brock was covered under the group policy at the time of his death and that under the policy, plaintiff was his beneficiary. The jury below returned a verdict in favor of defendant and plaintiff appeals. We reverse and remand for retrial.

On January 19, 1977, Elmo Brock was employed as a salesman at a Western Auto store in St. Louis. That evening, after the store had closed for the day, Mr. Brock went to the stockroom to turn off the lights in the store, as was his routine before leaving for home. While in the stockroom, Mr. Brock apparently fell to the floor and a fellow employee found him there a few minutes later. Mr. Brock did not know what caused him to fall and no one else witnessed his mishap. Mr. Brock was injured in the fall and later that evening was admitted to a hospital where his injury was diagnosed as a broken hip. It was subsequently determined that Mr. Brock would need surgery to repair the hip injury and he remained at the hospital in anticipation of surgery.

Prior to his injury on January 19, 1977, Mr. Brock had a lengthy history of arteriosclerotic heart disease. To relieve the danger and discomfort of this heart ailment, Mr. Brock had for several years prior to the hip injury, taken regular doses of several medications, including a blood thinner. In anticipation of hip surgery, Mr. Brock was taken off the blood thinning medication and was given a blood coagulent instead. While this change in regimen admittedly placed a greater strain on his heart, it was considered necessary to avoid excessive bleeding during surgery. Prior to his scheduled surgery, Mr. Brock was examined by a heart specialist in the hospital and was declared a fit candidate for surgery. Mr. Brock was by nature a nervous person and his anxiety was noticeably apparent while awaiting surgery. On the afternoon of January 21, 1977, Mr. Brock was transported to the operating room for hip surgery. While in the surgical waiting room, Mr. Brock had a heart attack and died. Plaintiff's medical expert testified that Mr. Brock's accident, combined with his weakened heart, caused his fatal heart attack.

Plaintiff contended that Mr. Brock's death was a result of the injuries he sustained in the accident, and plaintiff, thus, claimed she was due accidental death benefits under the policy in the amount of $10,000. This claim was in addition to the regular death benefits of the policy in the face amount of $10,000. Defendant refused to pay plaintiff's claim for accidental death benefits.

Defendant contended that the specific terms of the policy excluded recovery of accidental death benefits in this case. The policy required that the injury claimed as the cause of death be suffered in a "non-occupational" accident and also required that the death of the insured employee occur as a direct result of the accidental injury "to the exclusion of all other causes." ¹ Defendant contended that Mr. Brock's accident was occupational in nature. Defendant also contended that the accidental injury was not the primary cause of death but rather the pre-existing heart condition was the cause of death. For both of these reasons defendant denied plaintiff's claim for accidental death benefits under the policy. Plaintiff sued defendant for the $10,000 face amount of the accidental death benefits and for vexatious refusal to pay her claim. At the close of plaintiff's evidence, defendant was granted a directed verdict on plaintiff's claim for vexatious refusal to pay. The jury returned its verdict for defendant on plaintiff's claim for accidental death benefits.

On appeal, plaintiff contends that Missouri courts have placed a special meaning on the term "to the exclusion of all other causes" in cases involving accidental death benefits and contends the jury needed instruction on that meaning to correctly decide the case as submitted. Thus, plaintiff argues that the trial court erred in failing to define the term, "to the exclusion of all other causes," as used in the verdict directing instruction. ²

Plaintiff's claim of error on this point is grounded in the rule that accidental death benefits are recoverable in Missouri as long as the accidental injury directly causes death, even if the deceased would not have died from that injury had his previous health been different. Gennari v. Prudential Ins. Co. of Am., 335 S.W.2d 55, 62 (Mo. 1960); Lindemann v. General American Life Ins. Co., 485 S.W.2d 477, 480 (Mo. App. 1972). A preexisting condition, if only a remote and predisposing cause of death, does not preclude recovery of accidental death benefits. Gennari, supra 335 S.W.2d at 62; Lindemann, supra 485 S.W.2d at 480; Harris v. New York Life Ins. Co. 516 S.W.2d 303, 307-308 (Mo. App. 1974). This rule obtains even if the governing policy specifically requires death be caused by an accidental injury "directly and independently of all other causes." Harris, supra at 304, 308-309; also see Lindemann, supra, 485 S.W.2d at 478 ("not caused directly or indirectly, wholly or partly by physical infirmity or disease"). Plaintiff concludes that these cases cast a special legal meaning on the policy term in question so that a definitional instruction for the term was required.

These cases, however, do not specifically require that a definitional instruction be given when the policy term "to the exclusion of all other causes" is used in a verdict directing instruction. Generally, definitional instructions are utilized when necessary to make the instructions understandable to the average juror. MAI, How to Use This Book, p. XCV (1981). MAI recognizes that some terms, when used in jury instructions, should always be defined but a definition of the term "to the exclusion of all other causes" is not one of those prescribed by MAI. See MAI 11.00-16.06. Even if not mandated by MAI, however, a trial court must define for the jury legal or technical terms occurring in the instructions, for their meaning is not within the ken of the ordinary juror. See Yamnitz v. Polytech, Inc., 586 S.W.2d 76, 81 (Mo. App. 1979) ("substantially performed"); Cunningham v. Hayes, 463 S.W.2d 555, 563-564 (Mo. App. 1971) ("negligence" in res ipsa loquitur); Estate of Fugett, 596 S.W.2d 66, 70 (Mo. App. 1980) ("estate by the entirety"); see also, Huff v. Union Elec. Co., 598 S.W.2d 503, 510 (Mo. App. 1980); ³ On the other hand, the meaning of ordinary words used in their usual or conventional sense need not be defined for the jury, since the average juror would commonly understand their meaning. See Huff v. Union Elec. Co., supra at 510 ("improvements"); S.P. Personnel Assoc. v. Hospital Bldg. & Equip. Co., 525 S.W.2d 345, 350 (Mo. App. 1975) ("hire"). The policy term in issue, "to the exclusion of all other causes," does not contain words which are of themselves legal or technical in nature. If the jury were to apply these words in their usual and conventional sense, however, any contributing cause could preclude plaintiff's recovery, since the conventional and literal meaning of the policy term would encompass any and all causes. For example, plaintiff's evidence was that Mr. Brock's preexisting arteriosclerotic condition was a contributing cause in his death. Thus, under the instructions, as given, plaintiff could be precluded from recovery since the accidental injury was not literally the sole cause of death "to the exclusion of all other causes." This result would be contrary to the interpretation of accidental death policies made by our Missouri courts. Therefore, in this setting, the policy term has a meaning in law different than it has in common parlance and its legal meaning should be defined to the jury by a proper instruction. See Yamnitz v. Polytech, Inc., supra 586 S.W.2d at 81; Cunningham v. Hayes, supra 463 S.W.2d at 564.

Plaintiff did offer an instruction defining the policy term under Missouri law. ⁴ The trial court refused to give the instruction because it was not "simple and impartial and free from argument;" i.e., it failed to follow the MAI format. Rule 70.02(e); Henderson v. St. Louis Housing Authority, 605 S.W.2d 800, 802 (Mo. App. 1979). Defendant makes this same argument on appeal. We disagree.

We have previously set out the proffered instruction in issue in the margin. See Footnote 4, supra. The instruction is lucid, succinct and properly states the law. We find no explicit or implicit partiality or argument and, having carefully read defendant's brief, we find defendant fails to demonstrate any of these faults. See, e.g., Stogsdill v. General Am. Life Ins. Co., 541 S.W.2d 696, 700 (Mo. App. 1976). Arguably, the last sentence of this instruction could have been eliminated. At worst, it may be redundant but it is impartial and free from argument. The arguable redundancy does no real violence to the MAI requirement of simplicity. Additionally, we note the use of "direct" and "proximate" in the last sentence of the instruction. We do not find that the term "proximate" introduces legal jargon which itself must be defined. See Williams v. Hyman-Michaels Co., 277 S.W. 593, 594 (Mo. App. 1925). The juxtaposition of "direct" and "proximate" clearly would be understood by the jury as a lawyer's use of synonomous terms. Cf. Creech v. Blackwell, 318 S.W.2d 342, 351 (Mo. 195...