Frost v. Central Business Men's Ass'n

• Decision Date: 04 December 1922
• Docket Number: No. 14476.,14476.
• Citation: 246 S.W. 628
• Parties: FROST v. CENTRAL BUSINESS MEN'S ASS'N.
• Court: Missouri Court of Appeals

246 S.W. 628

FROST v. CENTRAL BUSINESS MEN'S ASS'N.

No. 14476.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Appeal from Circuit Court, Buchanan. County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by Georgia M. Frost against the Central Business Men's Association. From judgment for plaintiff, defendant appeals. Affirmed.

Ross J. Ream and Goodwin Creason, all of Kansas City, for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

TRIMBLE, P. J.

Plaintiff, as the widow of John B. Frost and beneficiary in a policy of accident insurance issued to her husband by the defendant, sues herein to recover the sum of $5,000, the amount agreed therein to be paid to her in the event insured lost his life "from bodily injuries effected directly and independently of all other causes through accidental means." A provision in the policy based the payment of said sum upon the further condition that "such injuries shall wholly and continuously disable the insured from date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability, but within ninety days from the date of the accident, shall wholly, independently and exclusively of all other causes" result in the loss of insured's life.

The controversy was over the question whether insured's death resulted from the causes and under the conditions named in the "above-quoted provisions of said policy.

The trial ended with a verdict in plaintiff's favor for the amount specified in the policy with interest from date of demand thereof. The defendant has appealed.

A demurrer to the evidence was offered at the close of plaintiff's case in chief, also at the close of the evidence; and the defendant's main contention is that the court should have sustained these demurrers.

The theory of plaintiff's case was, and is, that insured, on August 27, 1920, accidentally stepped upon and ran a nail into his right foot, whereby an infection was introduced into and set up in his body which, being carried by the lymphatics to the appendix and gall bladder, caused them to gangrene, break down, and be destroyed, producing insured's death on October 10, 1920. The claim that the demurrer should have been granted rests upon defendant's view, first, that there is no evidence insured ran a nail into his foot, and, second, that if he did, there is no evidence that it produced the condition that caused his death, and, third, that deceased was not wholly and continuously disabled from the date of his claimed accidental injury to the date of his death.

We scarcely need to say—it being so elementary—that the question presented by defendant is, not whether the evidence proves the respective facts necessary to maintain plaintiff's cause of action, but whether there is any substantial evidence (or a total lack thereof) to support any one or more of the ultimate facts necessary to the maintenance of plaintiff's case. If there is substantial evidence to support each ultimate link in plaintiff's cause of action, that is to say, evidence from which the jury could reasonably find each ultimate fact to be as plaintiff contends, then we must accept the jury's finding as disclosed in their verdict, even though defendant introduced evidence contradicting that of plaintiff. From which it follows that, in passing upon the propriety of the demurrer, we must treat all of the evidence tending to support plaintiff's cause of action as true, giving it the benefit of every reasonable inference to be drawn therefrom and disregarding all of defendant's evidence contradictory thereof. Dunphy v. St. Joseph Stock Yards Co., 118 Mo. App. 506, 512, 95 S. W. 301.

It is no doubt true that in arriving at a verdict the jury will not be allowed to build an inference on an inference. In other words, the jury cannot be allowed, after inferring from a certain state of facts that John E. Frost accidentally stuck a nail in his foot, to then infer from that, or from the same state of facts, that the infection produced thereby caused the disease resulting in his death. The jury are, however, entitled to infer that insured accidentally injured his foot upon a nail, from facts reasonably sufficient to support that inference; and they may then find, from other facts reasonably sufficient therefor, that the infection caused thereby produced the gangrenous appendix and gall bladder and killed the insured. Such procedure on the part of the jury is, in no sense, building an inference upon an inference. With these preliminary observations in mind and applied to the evidence, we set forth the following facts as shown by the record:

John E. Frost, 54 years old, was a lawyer, having a family consisting of a wife and one child and residing upon his 600-acre farm near Plattsburg. He was a strong, rugged, robust man of rather powerful build, weighing about 180 pounds. While he practiced law, yet he also looked after the management of his farm, rising early and working late before and at the close of each day in his law office in town. He was in good health and energetically pushed his business affairs. He was in the habit of arising as early as 4 o'clock in the morning to dispatch some farm work before going to town for the day.

On August 27, 1920, between 5 and 6 o'clock, insured was found at the barn sitting on the doorsill, pale, sick, and faint. He appeared to be suffering from some sort of an injury to his right foot, and told the hired man who found him that he had jumped off the wagon and ran a nail in his foot. (This statement to the hired hand as to what caused the injury was stricken out by the court as hearsay and the jury instructed to disregard it.) The hired hand, however, saw an eightpenny nail sticking up about an inch through a board lying near the wagon a few feet from where insured was seated, the wagon containing corn from which the hogs were fed or were to be fed. After sitting there for a while, Mr. Frost hobbled to the, house, where the women of the household were aroused, and bathed, dressed, and cared for his foot. His shoe, upon being removed, showed a hole in the sole like it had been penetrated by some sharp instrument. In the ball of the foot was a puncture or wound, as one witness puts it, "a kind of dark place," and "it looked like where a nail had went (gone) in." His foot was bathed in hot water, and iodine was applied to the wound, which is described in the record as "a hole in his foot." In the forenoon of that day, his wife took him in an automobile to a physician in Plattsburg. The physician found a punctured wound in the foot "just like some instrument had punctured it," such a wound "as a nail would make if one ran a nail in the foot." He gave it an antiseptic treatment, wrapped it up, and directed that the foot be treated three times a day by being soaked in hot water for half an hour and then poulticed to draw out the infection. For ten days or two weeks after that, this method of treatment was carried out and the doctor himself dressed the wounded foot each day. During this time there was pus in the wound which ran therefrom whenever the gauze and bandage were removed. The foot was swollen, a part of the time to such an extent that there was difficulty in moving the toes; but the swelling abated some in about eight days. However, during all of this time the foot was somewhat swollen. The bottom of the foot was red, while on the top was a dark somewhat bluish spot about the size of a nickel or maybe a quarter, and the foot pained him. The doctor continued to dress the foot antiseptically until the 15th of September, at which time the wound in the bottom of the foot was healed over; but the foot was still tender. Insured was lame and complained of his foot and was compelled to wear a loose shoe or slipper thereon. The doctor either went out to insured's house to treat him, at which times he found him often in the house lying in a reclining chair, but generally he was on the porch in a hammock with his foot wrapped up. The pus, which was a sure indication of infection, continued to run out of the wound for ten days after the day of the injury. After the puncture healed over, the insured's foot continued to be so tender that he could not use it except with the aid of crutches and he walked with their help for a part of the time.

On the 27th of September, 1920, just a month after his foot was injured, he was suddenly seized with sever pains in the abdomen or, rather, right over the stomach just below the cartilage to the ribs on the right side, accompanied with nausea and vomiting. The doctor was called, found him in bed, and began treating him, and continued to do so thereafter; but, as the patient got worse, another doctor was called in consultation, and finally it was decided to remove him to a hospital in St. Joseph, which was done on October 3, 1920. At this time his injured foot, although healed over at the puncture, was still so tender that he could not wear his regular shoe, but a very loose one had to be furnished. His physician accompanied him to the hospital, and there another doctor and then still another were called in consultation over the case. Insured had fever and all the symptoms of an acute abdominal...