Gasperino v. Prudential Ins. Co. of America

• Decision Date: 14 June 1937
• Docket Number: No. 18882.,18882.
• Citation: 107 S.W.2d 819
• Parties: GASPERINO v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

107 S.W.2d 819

GASPERINO v. PRUDENTIAL INS. CO. OF AMERICA.

No. 18882.

Kansas City Court of Appeals. Missouri.

June 14, 1937.

Rehearing Denied July 7, 1937.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Mary Gasperino against the Prudential Insurance Company of America. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

John J. Cosgrove and Carl L. Anderson, both of Kansas City, for appellant.

William C. Michaels and Kenneth E. Midgley, both of Kansas City, (Ralph W. Hyatt, of Newark, N. J., and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, of counsel), for respondent.

REYNOLDS, Judge.

This is an action by the beneficiary, Mary Gasperino, on a policy of insurance on the life of Alexander Gasperino. The policy carries a double indemnity clause which provides for the payment of an additional sum of $1,000 in the event of the accidental death of the insured. The suit is for the recovery of the accidental benefit.

The provision in the policy as to the accidental death benefit is as follows:

"The amount of Accidental Death Benefit specified on the first page hereof shall be payable in addition to the Face Amount of Insurance immediately upon receipt of due proof that the death of the Insured occurred during the continuance of this Policy while there was no default in the payment of premium, as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days of the accident, provided, however, that no Accidental Death Benefit shall be payable if the death of the Insured resulted from suicide, while sane or insane; or from being in military or naval service in time of war; or from operating, or riding in, any kind of submarine or aircraft, whether as a passenger or otherwise; or from a state of war, riot or insurrection; or directly or indirectly from bodily or mental infirmity or disease in any form. * * *"

The suit was instituted in the circuit court of Jackson county, Mo., at Kansas City by the plaintiff on the filing of her petition therein on June 21, 1935, in which petition it is alleged that the policy of insurance sued on was issued by the defendant to one Alexander Gasperino and that, by its terms, the defendant agreed to pay to the plaintiff as beneficiary therein the sum of $1,000 upon the death of the insured from natural causes and an additional sum of $1,000 should the insured meet his death from external, violent, and accidental means independent of all other causes.

It further alleges that the insured on September 4, 1932, died as a result of external, violent, and accidental means, independent of all other causes, in that he accidentally took into his body polluted and poisonous water, which water contained the germ of typhoid fever, and that his death occurred as a direct result thereof. It is further alleged in said petition that the plaintiff is the beneficiary named in said policy; that due proof of death was made; that the defendant paid to her as such beneficiary the sum of $1,000, but has failed and refused to pay, after lawful demand made therefore, the additional sum of $1,000 due by reason of the accidental death of the insured; and that the defendant's refusal to pay such additional sum is without justifiable cause or excuse and is vexatious.

Judgment is sought in the petition for the sum of $1,000, together with interest and with damages equal to 10 per cent. of the face amount of the policy and an attorney's fee of $500 by reason of the alleged vexatious refusal to pay.

The defendant, on November 2, 1935, filed its amended answer, in which it alleges that it was its purpose to state in such amended answer all of the facts deemed by either the one or the other of the parties to be material to the issues involved, in order that the cause might be determined on the pleadings. Among other things, it admits the issuance of the policy declared on in the petition, of date October 13, 1930. The policy is set out in full in the amended answer. It admits the payment of all premiums due on said policy up to the time of the insured's death and admits the death of the insured on September 4, 1932. It admits thereafter due proofs of the death of the insured were made to it by the plaintiff and sets out said proofs, together with the attending physician's statement incorporated therein. In the attending physician's statement, it is stated that the immediate cause of the death was typhoid fever and that it was not due to accident.

It is further alleged in said amended answer that, upon the receipt of proofs of death by the defendant, at its home office, it issued to the plaintiff its check in the sum of $1,002.84 (in payment of the ordinary death benefit on said policy plus one month's premium refunded, which had been paid in advance); that the plaintiff cashed said check and received the money thereunder; that, thereafter, the plaintiff made claim for $1,000 additional for the alleged accidental death benefit sued for, which sum it refused to pay; and that, on such refusal, this suit resulted.

It alleges the facts to be as follows:

"8. That prior to his death insured resided at 719 Highland Street in Lexington, Missouri, which residence was equipped with plumbing connected with the public water supply of the City of Lexington, which water supply was free of typhoid germs; that in the back yard of said residence was an old well which had not been used for some considerable time; that the weather during July, 1932, was very hot, and because the water from said well was cooler than the city water available in said residence, insured drank same, not knowing that said water was contaminated with typhoid germs; that about August 3, 1932, he became sick from typhoid fever and went to bed, and he died solely because of typhoid fever on September 4, 1932; that after August 3, 1932, water from said well was examined and found to contain typhoid germs, and the well was then permanently closed.

"8-a. (The amendment by interlineation). That during the week prior to August 3, 1932, insured developed a loss of color and feeling of lassitude, and on that day, because of fever and pale appearance the doctor was called, who put him to bed; that from then on until his death insured had a high fever and lost weight; that toward the end of his sickness his mouth, lips, and tongue became swollen, dry and black, his lips cracked, and he suffered from diarrhea, passing substance having the appearance of blood; that toward the end of his sickness, swellings would develop and disappear intermittently in the region of his abdomen; that he did not at any time during the course of the illness have nose bleed; that just before his death he became delirious from the fever; that the symptoms and conditions above noted all appear in the regular course of typhoid fever.

"9. That according to the unanimous opinion of medical scientists, typhoid fever cannot be contracted by a human being through a bruise or wound, but can only be so contracted by being taken into the alimentary canal with food or drink containing typhoid bacilli; when typhoid germs (Bacillus Typhosus) are taken into the system through this medium, they usually lodge in the stomach and intestines, which furnish proper media for their growth and multiplication; symptoms of typhoid fever are not at once apparent, as the germs must multiply to sufficient numbers before their presence is detectable by symptoms discernible to the patient; the period of incubation lasts from eight to fourteen days, sometimes twenty-three days, during which period, as the germs multiply, the patient develops feelings of lassitude and inaptitude for work; the first symptoms discernible to the patient are either chills, headache, anorexia, epistaxis, abdominal pain, constipation or pain in the right illiac fossa; the patient at last takes to his bed, and it is from this date that doctors generally, in the majority of cases, date the definite on-set of typhoid fever; the resulting illness and death (where such follows from this cause) are solely due to the reaction on the body of the toxins produced by the Bacillus Typhosus. Typhoid fever is referred to by all medical authorities as a specific infectious disease.

"10. There is no evidence as to any exact time that typhoid germs were taken into insured's body, but it is admitted that insured did on several occasions in July, 1932, drink water from said well which was later found to contain virile typhoid germs, his reason for so doing being, as before stated, that the said water was cooler than the city water obtainable in said residence."

The defendant in such amended answer further denies each and every other allegation in the plaintiff's petition and alleges the facts to be as stated in such answer.

It is further stated in said amended answer that the plaintiff contended that, by reason of the facts as set out therein, the defendant was liable to her under the law and the policy provisions entitled "Provisions As to Accidental Death Benefit" and that such contention is denied by the defendant and that the defendant contends that, under such facts and the law and the said policy provisions, the defendant is not liable to the plaintiff for any accidental death benefits.

To the amended answer thus filed by the defendant, the plaintiff filed a demurrer as follows: "Comes now the plaintiff and demurs to the defendant's amended answer to plaintiff's petition as said amended answer does not state sufficient facts to constitute a defense to this action, and for the further reason that under the facts as alleged in said amended answer plaintiff is entitled to judgment upon her...