O'Connor v. The Columbian National Life Insurance Company, a Corp.
| Citation | 232 S.W. 218,208 Mo.App. 46 |
| Parties | ELLEN O'CONNOR, Respondent, v. THE COLUMBIAN NATIONAL LIFE INSURANCE COMPANY, a corporation, Appellant |
| Decision Date | 07 June 1921 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Karl Kimmel, Judge.
AFFIRMED.
Judgment affirmed.
Leahy & Saunders and David W. Voyles for appellant.
(1) A lay witness will not be permitted to attempt a diagnosis of disease. Atkinson v. American School of Osteopathy, 199 Mo.App. 251, 270. (2) It is not competent to call upon witnesses to determine that which it is for the jury to decide. Spaulding v. City of Edina, 122 Mo.App. 65 69; Merkel v. Ry. Mail Assn., 226 S.W. 301; Deiner v. Sutermeister, 266 Mo. 505; State v Hyde, 234 Mo. 200; Glasgow v. Railway, 191 Mo 347; Baehr v. Union Casualty & Surety Co., 133 Mo.App. 544. (3) Inferences drawn by physicians, as experts, from facts not in evidence should be excluded, and wholly disregarded. State v. Hyde, 234 Mo. 200; Atkinson v. American School of Osteopathy, 199 Mo.App. 251; Bush v. Lisle, 89 Ky. 393. (4) No issue should be submitted to the jury which the jury can only determine by speculation or an injecture. Boeckmann v. Valier & Spies Milling Co., 199 S.W. 457, 460. (5) Where there is no direct evidence that the insured sustained an external or accidental injury, the issue, as to whether he did or not, cannot be founded upon inference only; nor where there is such lack of evidence can an inference that the death resulted from accidental means be based upon an inference of accidental injury. Merkel v. Ry. Mail Assn., 226 S.W. 300; Wright v. United Commercial Travelers, 188 Mo.App. 457; Rathman v. New Amsterdam Casualty Co., 186 Mich. 115; National Assn. Ry. Postal Clerks v. Scott, 155 F. 92; Carr v. Pacific Mut. L. Ins. Co., 100 Mo.App. 602.
O'Neill Ryan for respondent.
(1) No lay witness here attempted to diagnose the ailment of the deceased. But even a layman, a nonexpert, may state the apparent physical and nervous condition of a person and his appearance of pain, of activity and generally his manner and habits. Lindsay v. Kansas City, 195 Mo. 166; Osborne v. Wells, 211 S.W. 887; Schwanenfeldt v. Street Railway Co., 187 Mo.App. 594; Elliott v. Railway Co., 157 Mo.App. 521-522; Winkler v. Terminal Assn., 227 S.W. 627. (2) The burden was on appellant to sustain its only affirmative defense, to-wit: That the death of O'Connor resulted from disease. Laessig v. Traveler's Association, 169 Mo. 280; Beile v. Protective Assn., 155 Mo.App. 642. (3) If there were any merit--as there is not--in appellant's two points about the argument to the jury made by respondent's counsel, the appellant did not save either point below by an execption. Torreyson v. United Railways, 164 Mo.App. 375; State v. Thurman, 121 Mo.App. 377. There must be an exception saved to the adverse ruling, at the time the ruling is made, on an objection to counsel's argument, and also a reservation of the point in the motion for new trial. Both are necessary. Eppstein v. Missouri Pacific Railway Co., 197 Mo. 728. (4) (a) The witnesses here were not called upon "to determine that which it was for the jury to decide" as contended in appellant's brief, (b) There were no inferences drawn by respondent's expert (Dr. Simon) from facts not in evidence, as indicated in appellant's brief, page 31. (5) "Accidental means" in an accident policy (and those were the words used in this policy) "are those means which produce effects that are not the natural and probable consequences of the act." See: Beile v. Protective Assn., 155 Mo.App. 642; Wright v. Order, etc., of America, 188 Mo.App. 462. General definitions of the word accident are found in Lovelace v. Travelers Co., 126 Mo. 111. (6) The taking in of the ptomaine poison by O'Connor was clearly an accident. That is to say the "accidental means" of his death. United States Casualty Co. v. Griffis, 186 Ind. 126; Johnson v. Fidelity and Casualty Co., 184 Mich. 406 (L.R.A. 1916, A. 475). Other cases holding that the ingestion or absorption of poison is within the protection of an accident policy are: Dezell v. Fidelity and Casualty Co., 176 Mo. 253; Beile v. Protective Assn., 155 Mo.App. 629; Columbia, etc., Co. v. Fidelity & Casualty Co., 104 Mo.App. 157; Travelers Co. v. Dunlap, 160 Ill. 642; Healey v. Mutual, etc., Assn., 133 Ill. 556; Mutual Acc. Assn. v. Tuggle, 39 Ill.App. 509; Ingersoll v. Knights, etc., 47 F. 272; Hodgson v. Pref. Acc. Assn., 165 N.Y.S. 293. (7) The evidence showed there is a definite and deadly poison known as ptomaine. There was ample evidence to warrant the conclusion reached by the jury that O'Connor's death was directly due to the accidental swallowing of ptomaine poison. All the symptoms pointed unerringly to that as the direct cause of his death. (a) It would have been a question for the jury had there been (as I say there was not) evidence that the death was due to another cause, or to other causes. Campbell v. Aetna Ins. Co., 222 S.W. R. 780; Dezell v. Fidelity Casualty Co., 176 Mo. 253; Merkel v. Railway Mail Association Assn., 226 S.W. 299; Greenlee v. Casualty Co., 192 Mo.App. 303; Fetter v. Fidelity and Casualty Co., 154 Mo. 256; Younge v. Railroad, 133 Mo.App. 141. (b) If there are several causes that may have brought about the result (death), direct evidence of one is not necessary. It is enough to show with reasonable certainty that the one claimed by plaintiff was the cause--cases supra, and Merrick v. Travelers Ins. Co., 189 S.W. 392; Kelly v. Railroad, 70 Mo. 604. (c) If the accident causes disease and the latter causes death then the accident is the proximate cause. Carr v. Ins. Co., 100 Mo.App. 602; Freeman v. Merc. Mut. Acc. Co. Assn., 156 Mass. 351; Railway v. Wood, 66 Kan. 613; Railway v. McDade, 112 F. 888; Continental Co. v. Lloyd, 73 N.E. 824; Dulaney v. Modern Acc. Co., 97 N.W. 91. (8) Direct evidence that O'Connor swallowed ptomaine, e. g., that he took down and drank of a bottle labeled and containing poison, was not necessary. Reasonable probabilities or inferences may be drawn by the jury from all the facts and circumstances in evidence. Loessig v. Travelers Ins. Co., 169 Mo. 272; Merkel v. Railway Mail Assn., 226 S.W. 300; Merrick v. Travelers Ins. Co., 189 S.W. 392. However, as it was said in the Merrick case: Our "evidence deals with every possible cause of diseases manifested by the symptoms of the one in question and definitely excludes from the sphere of reasonable inference all other causes than that alleged." And see Winkle v. Dry Goods Co., 132 Mo.App. 566, where both court and jury inferred the fact that established negligence, direct proof not being obtainable.
This is a suit to recover on an accident insurance policy. Plaintiff recovered and defendant appeals.
The petition is in the usual form. The answer, after a general denial, alleges that deceased came to his death as a result of disease, namely uraemia secondary to acute nephritis.
The deceased, Charles F. O'Connor, died August 28, 1916, and was twenty-three years of age. A sister was named as beneficiary in the policy, which was afterwards assigned to deceased's mother, Ellen O'Connor. Charles F. O'Connor was single, and lived with his parents in St. Louis. His general health had been good up to the time of his death, with the exception of being operated upon for appendicitis in March, 1916, but he was able to go about his work in the office of the Meyer Milling Company, where he was employed on April 12th following the date of the operation. He was also sick during the month of August prior to his death, with an attack of what was termed in the evidence as "Summer Grippe." He had gone back to work on August 21, 1916. On the evening of August 24th, or in the early morning of August 25th, he was taken seriously ill, and died four days later.
His mother stated that on the evening he was taken ill, he ate dinner at their home with other members of the family; that the meal consisted of vegetable soup, crackers, beefsteak, creamed potatoes, canned green peas, a salad of tomatoes and lettuce, graham biscuits, and some coffee. He left home about ten minutes to eight that evening, and started to the Knights of Columbus Building to meet his friend, a Mr. Hannan. Some time near the hour of midnight she was aroused by the screams of the deceased, who was rigid and sitting upright in his bed. He was in a convulsion, and perspiration was pouring off his face and hands. He was foaming at the mouth. This convulsion lasted seven or eight minutes. His mother gave him some hot water and baking soda, which produced vomiting.
Dr. Lonsway was called and arrived about half past twelve. When the doctor arrived deceased was neither vomiting nor in convulsions, but was complaining of pains in the upper part of the abdomen. The doctor remained about three quarters of an hour, and about twenty minutes after he left, deceased had another convulsion. Dr. Lonsway came again and stayed about two hours. During the second visit the deceased was conscious, and would speak when he was spoken to. About seven o'clock the next morning Dr. Munsch arrived. About ten o'clock he was taken to the hospital, where he remained until his death.
It was shown by the deposition of Peter W. Hannan, who was twenty-eight years of age, and stationed at Jefferson Barracks at the time the deposition was taken, that he had known the deceased about a year and a half prior to his death, and attended night school with him at St. Louis University; that he saw the deceased during the summer of 1916 on an average of two nights a week. They very frequently spent their evenings together. When asked to describe in general...
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