Farmer v. Railway Mail Assn.

• Decision Date: 07 March 1933
• Docket Number: No. 22364.,22364.
• Parties: JENNIE L. FARMER, APPELLANT, v. RAILWAY MAIL ASSOCIATION, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

57 S.W.2d 744

JENNIE L. FARMER, APPELLANT, v. RAILWAY MAIL ASSOCIATION, A CORPORATION, RESPONDENT.

No. 22364.

St. Louis Court of Appeals. Missouri.

Opinion filed March 7, 1933.

Rehearing denied, March 21, 1933.

Writ of Certiorari denied by Supreme Court, April 20, 1933.

Appeal from the Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED (with directions).

Leahy, Saunders & Walther and J.L. London for appellant.

(1) Since the court set out the reasons for sustaining the motion for new trial by implication, it excluded all other assignments in the defendant's motion for new trial. Porter v. C.B. & Q.R. Co. (Sup. Ct.), 28 S.W. (2d) 1035. (2) Where sunstroke is not excluded in the policy it is within the purview of the provisions of an accident policy providing for recovery where the assured receives bodily injuries through external, violent and accidental means. Richards v. Standard Acc. Ins. Co., 58 Utah 622, 17 A.L.R. 1197; Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S.W. (2d) 493, 61 A.L.R. 1192; U.S. Fid. & Guar. Co. v. Hoflinger (Ark., Feb. 1932), 45 S.W. (2d) 866; Couch on Ins., par. 1184; 17 A.L.R. 1197. (a) The following cases, while containing provisions covering sunstroke effected by accidental means, definitely hold that sunstroke is an accident. Higgins v. Midland Casualty Co. (1917), 281 Ill. 431, 118 N.E. 11; Hutchcraft v. Travellers Ins. Co., 87 Ky. 300; Elsey v. Fidelity, 187 Ind. 447, L.R.A. 1918F 646; Continental Casualty Co. v. Clark (Okla.), 1918F 1007, 173 Pac. 453; Gallagher v. Fidelity & Cas. Co., 163 App. Div. (N.Y.) 556; Bryant v. Continental Cas. Co., 107 Texas 582, L.R.A. 1916E 945; Continental Cas. Co. v. Johnson, 74 Kan. 129, 85 Pac. 545. (3) Sunstroke is an accident under the compensation laws. Kripplaben v. Greenspon's, etc., Co., 50 S.W. (2d) 752; State v. Dist. Court, 164 N.W. 916, 138 Minn. 250, L.R.A. 1918F 918; Ismay v. Williamson, 77 L.J.P.C. (N.S.) 107; Morgan v. The Zenaida, 25 Times L.R. 446; Lane v. Horn & Hardart Bak. Co., 104 Atl. 615, 261 Pa. 329; Walsh v. Spring Co., 103 Atl. 1025; Young v. Mfg. Co., 164 N.W. 712, 101 Neb. 696. (4) Ambiguities in the policy are construed strictly against the insurer. Paragraph 4 of the policy provides: "If death shall result from such injuries alone." This covers "death from bodily injuries through external, violent and accidental means," and also "death by an accident," as set out in paragraphs 2 and 3. Renshaw v. Mo. State Mut. Fire & Marine Ins. Co., 103 Mo. 595; American Paper Prod. Co. v. Cont. Ins. Co., 225 S.W. 1029.

Holland, Lashly & Donnell for respondent.

(1) Sunstroke is a disease and has been so declared by the courts for generations. It is not a bodily injury. Sinclair v. Maritime Passenger A. Co., 3 Ellis and Ellis 478; Dozier v. Fidelity & Casualty Co., 46 Fed. 446; Herdic v. Maryland Cas. Co., 146 Fed. 396; Lenarick v. National Cas. Co., 45 Ins. Law Journal (Minn., 1915), 25 N.S. 71; Also all cases cited under Point 2. (2) There is no evidence that sunstroke was contracted through external, violent and accidental means, which is essential to recovery under an accident policy. Sinclair v. Maritime Passenger A. Co., 3 Ellis and Ellis 478; Dozier v. Fidelity & Cas. Co., 46 Fed. 446; Harloe v. California State Life Ins. Co., 273 Pac. (Cal., 1928), 560; Semancik v. Continental Cas. Co., 56 Pa. Sup. Ct. 392; Continental Cas. Co. v. Pittman, 89 S.E. (Ga. Sup., 1916) 716; Elsey v. Fidelity & Cas. Co. of N.Y., 109 N.E. (Ind., 1915) 413; Nickman v. N.Y. Life Ins. Co. (1930), 39 Fed. (2d) 763; Caldwell v. Travelers Ins. Co., 305 Mo. 619; Columbia P.S. Co. v. Fidelity & Cas. Co., 104 Mo. App. 157; Trau v. Preferred Acc. Co. (1930), 98 Pa. Sup. Ct. 319; Sizemore v. National Cas. Co. (1928), 108 W. Va. 530; Schmidt v. Ind. Traveling Men's P. Ass'n, 142 Ind. App. 483; Rock v. Travelers Ins. Co., 172 Cal. 462; Maryland Cas. Co. v. Spitz, 246 Fed. 817; Zach v. Fidelity & Cas. Co. (1925), 272 S.W. 995; Paist v. Aetna Life Ins. Co. (1931), 54 Fed. (2d) 393; Cornelius, "Accidental Means," March, 1932, Edition, Chandor, Publisher, Indianapolis, pp. 62 to 75. (3) Compensation cases on the subject of sunstroke are not in point, since in many instances diseases peculiar to the occupation are covered in a majority of the states from which appellant has drawn her citations, and in those states, as in Missouri, where the occupation requires and compels exposure to which the general public, as a whole, is not subject, sunstroke was held to be peculiar to the employment and arising out of it. There are, however, quite a few compensation sunstroke cases which have been held not covered by the law, but their citation would add nothing to this brief. (4) There is no ambiguity in the wording of this benefit certificate. The insuring clause provides: "If the member named in this certificate shall receive bodily injuries during the continuance of this certificate, through external, violent and accidental means, not the result of his own vicious or intemperate conduct — (4) if death shall result from such injuries alone within 180 days from the date of the injury, the Association will pay four thousand dollars." There is nothing in the least ambiguous about this prasing, which is well known in the law and is a standard provision of an ordinary accident policy. Paragraphs 2 and 3, which follow the insuring clause, relate simply to compensation for loss of an eye, arm, leg, both arms and both legs, and have nothing to do with death. Zach v. Fidelity & Cas. Co. (1925), 272 S.W. 995; Caldwell v. Travelers Ins. Co., 305 Mo. 619. The contention of appellant under this subdivision is new and was not the issue below, upon which the court sustained the demurrer. Plaintiff cannot on appeal change the theory upon which the case was tried below. 2 Missouri Digest, Appeal & Error, Key No. 171(1).

SUTTON, C.

This is an action on an insurance policy issued by defendant, insuring plaintiff's husband against bodily injuries, resulting in death, received through external, violent, and accidental means.

The trial, with a jury, resulted in a verdict for plaintiff for $3,000, and judgment was entered accordingly. From the order of the court granting defendant a new trial, on the ground that defendant's instruction in the nature of a demurrer to the evidence ought to have been given, plaintiff appeals.

The insured died as the result of a sunstroke suffered on July 11, 1930. At the time of his death the insured was chief clerk of the Railway Mail Service in the City of St. Louis. How long he had been in this office is not shown, but he had been a postal clerk for about forty years.

Plaintiff testified that on the day the insured suffered the sunstroke he left his home to go to his work about seven o'clock in the morning; that this was the usual time that he left to go to his work; that when he left home that morning his general appearance so far as health was concerned was perfectly all right; that she next saw him about half past four or five when he came home in the afternoon; that when he came home he was very nervous and his face was black or purple; that he was holding one hand to his throat and the other to his head; that he said: "I have had a sunstroke. It seemed as though something hit me down the street. I caught to the fence or tree. The first thing I thought was, `Well, I am near enough home that if I should fall some one will know me and take me home.'" Plaintiff further testified that insured died about three o'clock on the morning of July 13, 1930.

Dr. John H. Coats testified, for plaintiff, that he called to see insured on the evening of July 11th, and found him with a temperature of 106, in convulsions, and in a semi-conscious state; that he made a diagnosis of sunstroke, and gave him the usual treatment for sunstroke; that sunstroke was the cause of his death.

Dr. R.B.H. Gradwohl testified, for plaintiff, as follows: "Sunstroke is an effect induced by the rays of the sun on the human body. It is a physical force which disturbs the heat regulatory mechanism of the body, that is, there is a center in the brain which normally controls the temperature by controlling the heat production and heat loss, and in this condition the mechanism is interfered with. I would say the cause of the death-dealing effects are due to the detention in the body of products that ought to be eliminated. In other words this condition of sunstroke prevents the individual from throwing off poisonous substances through his skin, through his kidneys, through his bowels, and through his lungs. It is a physical agent that brings about this sunstroke. I do not consider sunstroke as a disease in a medical sense. I consider it a condition brought about by the application of a physical agent, because we do not see any tangible evidences of disease in the dead bodies of people that die of this condition. It is well called a disturbed physiology rather than a disease in the sense of gross organic changes. Sunstroke is a physical force applying its physical effects to two centers, really four little points at the base of the brain, which are called the heat regulatory centers. The physical force applying itself is the heat. By physical force I mean some agency outside the human body that effects, for the bad, the health and life of the individual. In other words, a normal individual is struck down by an agency that is not a disease. Sunstroke is not a disease.

July 11, 1930, was a hot day, the temperature ranging from eighty-seven degrees at seven o'clock in the morning to 103 degrees at four o'clock in the afternoon.

In support of the court's action in granting defendant a new trial, defendant first contends that sunstroke is a disease and not a bodily injury, so that insured's death resulting from sunstroke is not within the coverage of the policy sued on. That sunstroke is a disease and not a bodily injury appears to have been...