Fetter v. Fidelity & Casualty Co.

• Decision Date: 18 March 1903
• Court: Missouri Supreme Court
• Parties: FETTER et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.

73 S.W. 592

174 Mo. 256

FETTER et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

ACCIDENT INSURANCE—CAUSE OF DEATH— BURDEN OF PROOF.

1. Death from a rupture of a kidney, produced by an accidental fall, is the result of the accident. "independent of all other causes," within the provision of the policy—this meaning direct or proximate causes—though a cancerous condition of the kidney made the rupture possible.

2. Plaintiff in an action on an accident policy makes out a prima facie case by evidence tending to show that insured died of hemorrhage resulting from an accidental fall; so that defendant has the burden of proving its claim that insured died of cancer.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Albert T. Fetter and others against the Fidelity & Casualty Company of New York. Judgment for plaintiffs. Defendant appeals. Affirmed.

Appeal from a judgment of the circuit court of Jackson county in favor of plaintiffs founded on two accident insurance policies issued by defendant on the life of plaintiffs' father. The petition is in two counts. In the first it is averred that the defendant issued its policy February 21, 1892, whereby it insured the life of plaintiffs' father against bodily injuries sustained through external, violent, and accidental means, and agreed to pay plaintiffs $5,000 if death should result to their father from such injuries, independent of all other causes, within 90 days from the date of the infliction of such injuries. It then goes on to state in detail the accident which it alleges caused the death of their father within less than 30 days from the date of its occurrence. The second count is in form substantially like the first, based on another policy, issued November 18, 1893, for $6,000. The answer of defendant was a general denial and a special plea that the insured died a natural death, resulting from a diseased kidney. Reply, general denial.

The evidence on the part of the plaintiffs tended to show that W. J. Fetter, their father, whom we will hereinafter call the "insured," was past 69 years of age. August 6, 1899, he was at his office, and about 5 in the afternoon, preparatory to leaving, he and his son, who was with him, attempted to close a window, the upper sash of which had been let down. The sash did not move smoothly; therefore each of them took a window pole, which was designed for the purpose, and, inserting one end under the upper rim of the sash, endeavored to push it in place. But it seemed to be stuck, and required hard pushing to move it. In this effort the upper end of the stick held by the insured slipped off the rim, and the sudden release of its hold had the effect to throw the insured upon his right side against the edge of a table that was in place at the window, designed to hold maps and drawings to be used by one standing, and therefore tall enough to strike the insured high on the side. He immediately dropped the stick, turned pale, and groaned. In a few minutes afterwards he went home. He was looking tired and pale when he arrived. He took a light repast, and went to bed. During the night he passed blood in his urine, and very early in the morning he sought his family physician, Dr. Porter, but did not see him, and returned home about 7:30 o'clock, pale and suffering. His physician came, and found him suffering pain in the right kidney, and passing blood in his urine. August 13th he was taken to St. Joseph's Hospital, where an exploratory examination was made by Dr. Binnie, assisted by Drs. Porter and Shy. Incision was made in the back, and Dr. Binnie introduced his fingers into the pelvis of the kidney, but found nothing abnormal except the rupture and an enlargement. The patient rallied from the operation, and the wound healed from the inside, but the hemorrhage continued as before until his death, which occurred September 2, 1899, less than 30 days from the occurrence of the accident. He died from hemorrhage—from loss of blood. The autopsy held September 4th revealed a normal left kidney. The right kidney revealed a rupture, and the lower end of that kidney was cancerous, harder than the normal part, and less vascular; that is, less full of arteries and veins that would bleed. The rupture found in the kidney was between the normal and the cancerous parts, or into the healthy tissue. The hemorrhages were from the rupture, and the hemorrhages caused the death. Before the accident the insured was an active, spare, hardworking man past 69 years, engaged in the business of fire insurance. He was in good health having had no hard spell of sickness within the memory of any member of his family. His family physician had several times examined and passed him for life insurance. Had examined his urine three months before the accident, and found it normal, with no evidence of diseased kidney. All the testimony was to the effect that the accident of falling against the table caused the rupture, the rupture caused the hemorrhage, and the hemorrhage caused the death. The majority of the expert witnesses were of the opinion that the cancerous condition of the kidney existed at the time of the accident, and that that condition was the predisposing cause of the rupture; that is, that that condition rendered rupture more liable to occur under the force of the blow than if the kidney had been sound. But some of the expert testimony was to the effect that the cancerous condition itself might have been produced by the blow. Dr. Hall, a scientific witness for defendant, who examined the kidney after it had been taken from the body, after death, was of the opinion that the cancer existed before the accident, and that the rupture occurred only in the diseased part of the kidney. He said: "The existing cause of the hemorrhage was the injury, and the predisposing cause was the cancer. Q. What do you mean by the `predisposing cause'? A. That was the condition of the kidney which gave rise to the production of the fracture. The predisposing cause is the remote cause. * * * The cancerous condition weakened the kidney to such an extent that it responded to this injury by some accidental means." He was asked as to the length of time required to develop a cancer. He answered: "That is a matter which must be stated relatively. I think this is, relatively, a rapid-growing cancer. Some cancers are matters of years— most of them; but some are matters of months, and others matters of days."

The cause was submitted to the jury under the following instructions asked by the plaintiff:

"(1) The court instructs the jury that if they find from the evidence that W. J. Fetter died in Kansas City, Mo., September 2, 1899, and that such death resulted from bodily injuries sustained through external, violent, and accidental means, and that the cause of said Fetter's death was the accidental rupture of his right kidney by an accidental strain, jar, or fall while endeavoring to raise a window in his office in the American Bank Building in Kansas City, Missouri, on the 6th day of August, 1899, that their verdict will be for the plaintiffs on both counts of the petition.

"(2) The jury is instructed that if they believe from the evidence that the death of William J. Fetter was directly caused by the accidental rupture of his right kidney, then their verdict should be for plaintiffs on both counts of their petition—on the first count in the sum of five thousand dollars, and on the second count in the sum of six thousand dollars, with interest on both said sums at six per cent. per annum from February 21, 1900; notwithstanding that the jury further believes from the evidence that said kidney at the time of the rupture was diseased; provided, that the jury further find that said Fetter would not have died at the time, under the circumstances, and in the manner he did die, had it not been for the accidental rupture of his kidney.

"(3) The court instructs the jury that, the defendant in this case having pleaded an exception in the terms of the insurance policies sued on, and having alleged in their answer that the death of W. J. Fetter was caused by disease, and not by accident, the burden of proving that said Fetter's death was caused by disease is upon the defendant, and, unless they believe from the preponderance of the evidence that said death was caused by disease, they will find for the plaintiffs.

"(4) The jury are instructed that they are the judges of the question of fact as to what was the cause of Mr. Fetter's death. If they find from the evidence that the cause of said death was accidental rupture of the right kidney on or about August 6, 1899, under the circumstances as detailed in evidence, they will find for the plaintiffs, even though they believe from the evidence that said right kidney, when so ruptured, was diseased."

The defendant asked the following, all of which were refused except No. 2, which the court gave after modifying it by writing the word "direct" before the word "cause":

"(1) The court instructs the jury that under the pleadings and the evidence in this cause you will return a verdict for the defendant.

"(2) The court instructs the jury that, before they can find the issues for the plaintiffs, they...