Christianson v. Metropolitan Life Ins. Co.

• Decision Date: 01 February 1937
• Docket Number: No. 18793.,18793.
• Citation: 102 S.W.2d 682
• Parties: CHRISTIANSON v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

102 S.W.2d 682

CHRISTIANSON v. METROPOLITAN LIFE INS. CO.

No. 18793.

Kansas City Court of Appeals. Missouri.

February 1, 1937.

Rehearing Denied March 1, 1937.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

"Not to be published in State Reports."

Action by August Christianson against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Williams C. Michaels, Kenneth E. Midgley, and Robert E. Coleberd, all of Kansas City, for appellant.

Meyer & Smith and Vernon H. Monteil, all of Kansas City, for respondent.

SHAIN, Presiding Judge.

This is an action seeking to recover double indemnity based upon a rider on a life insurance policy, which rider provided for double indemnity, provided the insured's death was caused solely by accidental injury. The contract specified limited liability by the following language: "That no accidental death benefit would be paid if the death of the insured was caused or contributed to, directly or indirectly, or wholly or partially by disease or by bodily or mental infirmity."

The policy was in stated amount for $260 for death, and the rider alone provides for double indemnity aforesaid.

The undisputed facts are that the insured sustained a small abrasion or cut on the shin of her right leg. Pain thereafter developed in the leg, which finally turned black. The insured was taken to the General Hospital in Kansas City, Mo., where she died.

The cause of death is given as "diabetic gangrene of the right leg following the abrasion or cut which she sustained." It is in evidence that "the contributory cause of death was diabetes mellitus." All of the above appears as conceded by both parties.

It appears that for some months before death of the insured, while being able to attend to household duties, still it was noticed that skin abrasions would not heal but would result in infection. It is shown that during these previous months the insured lost weight, was always thirsty, drinking enormous quantities of water and urinating frequently and in large quantities. Her appetite was poor, and she frequently had shooting pains in the calves of both legs.

The testimony is to the effect that a person cannot be afflicted with diabetic gangrene without having diabetes. The evidence is further to the effect that scratches or abrasions of the skin will not cause diabetes and that diabetes is an internal disease.

There was also evidence to the effect that a scratch upon the shin of the right leg, about one-half inch in length, and which bled some, in a woman of 55 years of age, in the absence of diabetic condition, could also cause death where infection ensued.

The issue in the case was whether insured's death was covered under the provisions of the "accidental death benefits" announcement. No question is raised as to the pleadings. All of the evidence (except the check in payment of the single indemnity) was offered by plaintiff. Defendant's demurrers at the close of plaintiff's case and at the close of the whole case were overruled and exceptions saved.

The verdict was for plaintiff in the total sum of $417.20 (which included interest, penalty and attorney fees); judgment was entered thereon, defendant's motions for new trial and in arrest were both overruled; and this appeal was duly and regularly taken.

There is but one assignment of error, to wit: The court erred in refusing to give defendant's instructions directing a verdict for defendant.

The reason assigned is as follows: "For the reason that plaintiff's evidence not only did not prove that the manner and cause of insured's death was within the provisions of the `Accidental Death Benefits' announcement or rider offered in evidence, but in addition affirmatively proved that such death was expressly excluded from coverage under the exceptions contained in such provisions."

Opinion.

The parties to this action have, in addition to Missouri authority, cited cases from the courts of many states of the Union. If the courts of Missouri furnish authority to determine the issue, we need not discuss the holdings by courts of other states.

This case presents the often discussed question of "proximate cause," wherein our courts have frequently noted that there is an apparent, rather than real, conflict of opinion owing to the various terms used in policies of the character herein involved.

In the application of judicial opinion in this class of case, there must be a discernment not only as to the particular contract in issue, but also it must be ascertained as to whether the discussion is as to the evidence or as to the contractile expression.

The contract in the case at bar must be distinguished from accident policies wherein injury or resulting death is predicated alone upon sustaining of "bodily injuries directly, solely and exclusively through accidental means independent of all other causes." This is so, because the contract herein involved at least undertakes to restrict as to coverage of results "caused or contributed to, directly or indirectly, wholly or partially by disease." Kahn v. Metropolitan Casualty Ins. Co. (Mo.Sup.) 240 S. W. 793; Wheeler v. Fidelity & Casualty Co. of New York, 298 Mo. 619, 251 S.W. 924.

It is further held by the courts of Missouri that in determining the fact, as to whether death would have resulted regardless of disease, the evidence must control and conclusion cannot be based upon presumption or possibility alone. Wheeler v. Fidelity & Casualty Co., supra.

Based upon the cases cited above, we make a restatement of the law applicable to this case, as follows: The evidence must deal only with tangible, external facts and conditions that follow in an unbroken chain of sequence from the injury insured against and complained of, and there must be no other facts or circumstances in evidence reasonably accounting for the death.

With the above principles of law applied to the issue in this case, we conclude there are two pertinent questions, to wit: First, was the immediate cause of death the disease? Second, was the immediate cause of death the accident? If the first question must be answered, yes, under all of the credible testimony given, then there is no liability for double indemnity. If the second question, after giving plaintiff benefit of most favorable evidence, or in other words, if there is no evidence from which it can legitimately be inferred otherwise, must be answered, no, then the plaintiff has failed to make out a case for double indemnity. Goodes v. Order of U. C. T., 174 Mo.App. 330, 156 S.W. 995.

The counsel in their briefs have presented their respective claims very learnedly from the standpoint of the law. After careful inquiry of authorities cited, we have reached our conclusions as to the law and have stated same.

After determination as to the law, we take up a consideration of the application of the law to the facts. In doing so, we search the briefs and arguments in vain for any statement of fact or facts in the evidence, or any reference to page of record where any fact or facts in evidence can be found that has application to any principle of law contended for. However, as question of demurrer to the evidence is involved, we are required to search the whole record.

The evidence going to the cause of insured's death is best expressed by questions...