Curry v. Federal Life Ins. Co.

• Decision Date: 24 May 1926
• Docket Number: No. 15622.,15622.
• Citation: 287 S.W. 1053
• Parties: CURRY v. FEDERAL LIFE INS. CO.
• Court: Missouri Court of Appeals

287 S.W. 1053

CURRY v. FEDERAL LIFE INS. CO.

No. 15622.

Kansas City Court of Appeals. Missouri.

May 24, 1926.

Rehearing Denied June 14, 1926.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

Action by S. B. Curry against the Federal Life Insurance Company Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

George E. Woodruff, of Trenton, and Ross J. Ream and Denton Dunn, both of Kansas City, for appellant.

Hubbell Bros., of Trenton, for respondent.

ARNOLD, J.

This is a suit to recover upon a policy of accident and health insurance. Defendant is a corporation organized and existing under the laws of the state of Illinois, with its principal office in the city of Chicago, and operating in the state of Missouri under the provisions of the laws thereof.

April 5, 1921, defendant issued to plaintiff, a resident of Grundy county, Mo., its certain accident policy of insurance, in consideration of the stipulated premium mentioned therein, whereby, among other things, it agreed to pay plaintiff the sum of $2,250 in the event of the loss of one hand, at or above the wrist joint, provided said loss was effected directly and independently of all other causes, through external, violent, and accidental means. In the month of April, 1924, by surgical operation, plaintiff sustained the loss of his left hand above the wrist joint.

On April 22, 1924, plaintiff was in St. Mary's Hospital in Jefferson City, Mo., where he had recovered from an operation for hernia performed on the 3d day of said month. The record shows that in the afternoon of April 22d, plaintiff was testing his strength preliminary to leaving said hospital the following morning, and in doing so plaintiff placed himself on the side of the bed and stood with his feet upon the floor, but, finding a table so close to him as to interfere with his purpose, plaintiff endeavored to push it aside, and while so pushing the table aside with his right hand, one of the rollers or legs of the table caught on the floor, the table tilted, and started to fall. In order to prevent the table, upon which were some glasses, from falling, plaintiff, by a quick movement, grabbed the table with his left hand. Immediately thereafter he felt a pain in his left shoulder and arm, and there soon appeared swelling and discoloration in said member, followed by gangrene and paralysis.

Dr. Aldridge who had performed the hernia operation, was called on the day following the incident just related, and the conditions he found may best be described in his own language, contained in his deposition read in evidence, as follows:

"About as near as can remember, late in the afternoon I was called to the hospital for an emergency for Mr. Curry. That was April 23d that: was called. Yes; on the 23d I was called for an emergency for Mr. Curry. There I found the circulation of his left arm was entirely absent. We decided to watch the condition for a few hours. The following morning we found a progressive condition due to the obstruction of an artery, causing beginning gangrene of the arm. This circulation was destroyed up to about five or six inches of his shoulder. We decided to remove the arm that evening, which we done, and found the brachial artery obstructed about six inches below the shoulder. We amputated the arm at this location. This amputation was followed by a good operative recovery. That is about all there was to it as far as the operative record went."

The petition alleges that the sudden action or quick movement of plaintiff's left hand and arm in endeavoring to stop the fall of the table was involuntary, and that this unusually quick movement and unusual exertion caused a blood clot, or embolus, to dislodge from the valves of the heart and lodge in an artery of plaintiff's left shoulder, stopping up and clogging said artery and rendering necessary the amputation of plaintiff's arm, between the elbow and shoulder, "and by reason of all of the aforesaid facts, the loss of the plaintiff's left hand and left arm was effected directly and independently of all other causes, through external, violent, and accidental means," within the terms of the policy.

Written notice of plaintiff's claim, together with information relative thereto, was sent to the insurance company. Considerable correspondence between the parties ensued, with the result that defendant denied all liability under the policy excepting the sum of $56.43, covering 20 days' disability while plaintiff was confined in the hospital. The receipt on the back of the check for this amount specified that the check was "in full payment, satisfaction, discharge, and release of all claims accrued or to accrue from disability by illness commencing April 22, 1924." Plaintiff refused to accept this check. Upon defendant's denial of liability on account of the loss of plaintiff's hand and arm, this suit was instituted.

The petition alleges the matters summarized in the above statement of facts, and seeks judgment in the sum of $2,250 for loss of the arm and hand, with 6 per cent. interest from date of filing the suit, together with 10 par cent. statutory penalty for vexatious delay and $500 for attorney fees. The answer is a general denial. The cause was tried to a jury, and resulted in the following verdict:

"We, the jury, find for the plaintiff, and find for him in the sum of ($2,250) twenty-two hundred and fifty dollars, as principal or original amount of insurance, and find for him, in the sum of ($135) one hundred thirty-five dollars, as one year's interest at 6 per cent. (6%). We further find that the plaintiff is entitled to a reasonable attorney's fee, which we assess at ($300) three hundred dollars.

                             "Henry Overton, as Foreman."
                

Judgment for plaintiff was accordingly entered in the sum of $2,685. Motions for a new trial and in arrest were unavailing, and defendant appeals. It is urged that the court erred in refusing the defendant's peremptory instruction in the nature of a demurrer, at the close of all the evidence. The principal ground upon which defendant urges this charge of error is, that there was no legal proof of the cause alleged, in the petition — of the blood clot which necessitated the amputation of plaintiff's arm — and that this cause was an intentional act of plaintiff, not constituting accidental means within the terms of the policy, even though followed by an unexpected result, which was the release of the blood clot by the voluntary exertion of plaintiff upon first arising from the bed following the operation for hernia; that proof of accidental means is required upon the policy, rather than a mere showing of an unexpected result of an intended means or cause.

Defendant vigorously urges that the rule applicable to the facts just stated, as declared by the latest utterance of the Supreme Court on this point, in Caldwell v. Insurance Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56, precludes plaintiff's recovery herein. The question thus presented we consider the main issue in the case, and, as we see it, the controversy resolves itself into the proper construction of the word "means" as used in the policy, to wit., "accidental means." It is urged that plaintiff pleaded and tried his cause upon a confusion of the terms "accidental result" with "accidental means." On the contrary, it is the contention of plaintiff that the petition properly charges and the proof shows that the means by which the blood clot was released we s the "involuntary" act of plaintiff in grabbing the toppling table with his left hand; that the exertion thus applied was involuntary and therefore accidental.

In the Caldwell Case the Supreme Court very carefully and ably explains the distinction between accidental means and accidental result, and holds that the word "means" as used in the policy in that case means "cause," and that an accidental result is not equivalent to an accidental cause; and that if, in order to recover on an accident insurance policy, the beneficiary must show that the death or injury of the assured resulted from accidental means, it must be shown that the...