Gennari v. Prudential Ins. Co. of America

• Decision Date: 19 May 1959
• Docket Number: No. 29872,29872
• Citation: 324 S.W.2d 355
• Parties: Frances GENNARI (Plaintiff), Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 355

324 S.W.2d 355

Frances GENNARI (Plaintiff), Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation (Defendant), Respondent.

No. 29872.

St. Louis Court of Appeals, Missouri.

May 19, 1959.

William G. Phillips, St. Louis, for appellant.

Fordyce, Mayne, Hartman, Renard & Stribling, William W. Sleater, Jr., St. Louis, for respondent.

DOERNER, Commissioner.

Plaintiff appeals from an adverse judgment rendered against her in the Circuit Court of the County of St. Louis in an action brought by her on the double indemnity provisions of two life insurance policies issued on the life of her husband, Joseph Gennari.

The first policy, for $5,000, is dated December 27, 1930, and the second, for $1,000, was issued on August 19, 1930. Both life insurance policies contained a rider whereby in consideration of an extra premium the defendant promised to pay to the plaintiff the face amount of each policy if the death of the insured occurred '* * * as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means,' provided, however, that said benefit should not be payable if such death resulted, among other causes, '* * * directly or indirectly from bodily or mental infirmity or disease in any form.' The defendant paid the amounts due under the life insurance provisions of the policy but refused to pay the double indemnities payable for death by accidental means.

In both counts of her petition plaintiff alleged that her husband had died on July 21, 1954, as a result of bodily injuries effected solely through external, violent and accidental means, when after working for a long period of time in an ice chamber he emerged therefrom into extreme heat which caused his death. By its answer defendant admitted the death of the insured; that the policies were in force; that there were no defaults in the payment of premiums, and denied generally the plaintiff's allegation that the insured's death had resulted from accidental means. It then pleaded the provision that the double indemnity was payable only upon due proof that the death of the insured had resulted from accidental means, and that no accidental death benefit was payable if the death of the insured resulted from bodily or mental infirmity or disease, and alleged that the plaintiff had failed to furnish it with due proof that the death of the insured came within the accidental death benefit provision of the policies.

The evidence revealed that the insured, Joseph Gennari, was 57 years old at the time of his death. His usual occupation was that of pastry cook, but in addition he accepted special engagements to carve ornamental table decorations out of ice. On July 20, 1954, he was specially employed by the Norwood Hills Country Club to prepare certain ice carvings for a social event to be held at the Club, and carried on his work in the walk-in icebox located in the basement of the club house. The icebox was about seven feet high, four feet wide, and nine feet long, and was cooled by refrigerating pipes suspended along the ceiling and walls. Witnesses estimated the temperature at from 31 to 38~ F, and described it as such that beer would not freeze and ice would not melt. The record does not disclose the total length of time the insured was in the icebox, but it was sufficiently long for him to have completed carving an ice bowl and a bird out of blocks of ice, and to partially complete a swan. The deceased's outer garments consisted only of pants, a blue work shirt and two or three striped, cotton jackets. He wore no gloves, and stood on a concrete floor while performing his work.

After at least an hour's continuous carving, the insured was seen to lay down the hammer and chisel he was using, and to step through the door of the icebox, which had been kept open, into a hallway. He turned to his right, rounded a corner into a second hallway, and had taken in all about twelve steps in a normal manner, and had covered a distance of about forty feet from the icebox, when he was seen to stagger. Witnesses caught him before he struck the floor and assisted him into a chair. When asked whether he was sick, the insured mumbled the single word 'yes,' and thereafter said nothing. He had mentioned no reason for leaving the icebox to the Club's employee who was assisting him, and apparently was headed towards an employees' locker room and lounge.

Dr. Harold Selle, a member of the Country Club, who was in the men's grill, was summoned and rendered assistance to the insured. The doctor described the deceased as being in a semiconscious condition, perspiring profusely, and seized with minor convulsions. Upon taking the insured's blood pressure he found it to be 230 over 140. The temperature was not taken at that time. The insured was conveyed to the St. Louis County Hospital in an ambulance. Upon admission at 7:25 p. m., it was found that his temperature was 101~, and his blood pressure 250/180. Subsequently his temperature rose to 105.4~ at midnight, and ice, wet sheets, and a fan were used to reduce the temperature to 100.2~ reached at 1:30 a. m. Death occurred at 3:00 a. m. on July 21, 1954.

Testimony offered by the plaintiff developed that on the day the insured was stricken the temperature at the Federal Building in St. Louis, distant about eight or ten miles from the Country Club, was 102~. According to one of the witnesses, a thermometer located in the hallway near the icebox read 103~. The natural heat in the hallway was augmented by heat from the boilers, located in another part of the basement.

The record shows that the insured had been rejected for insurance, and shortly thereafter, on April 30, 1953, although he had no symptoms, consulted Dr. Birkle Eck to have a cardiovascular investigation made. Dr. Eck's report, read in evidence, disclosed that the insured weighed 161 pounds, had a blood pressure of 160/110, and had tortuous, thickened radial and temporal arteries. A fluoroscopic examination revealed that the cardiac border showed slight prominence on the left, compatible with early left ventricular hypertrophy; and also revealed increased hilar markings. The electro-cardiogram was within normal limits. Treatment prescribed was a high protein, low fat diet designed to gradually reduce the insured's weight; a mild sedative; and rutin and ascorbic acid tablets. The insured was again seen by Dr. Eck on May 21, 1953, and a third time on September 17, 1953, when his weight was 161 pounds and his blood pressure 160/104. The doctor's final diagnosis was hypertensive cardiovascular disease; arteriosclerosis; peripheral.

As indicated by the pleadings, the sole issue in dispute between the parties was whether or not the death of the insured resulted from accidental means. In support of her contention that the emergence of the insured from the cold icebox to the very hot hallway affected the heat control center in the brain, and caused the insured's death, the plaintiff presented Dr. Sylvester H. Pranger and Dr. Harold Selle as her medical witnesses. It was Dr. Pranger's opinion that the insured suffered a great shock, equivalent to a heat stroke, due to the sudden and radical change in temperature, which affected the heat control center of the body, located in that part of the brain called the thalmus, causing an edema of the brain, and resulting in the insured's death. In this he was supported by Dr. Selle, who also attributed the insured's death to a cerebral vascular accident, probably precipitated by the extreme change in the heat environment. However, Dr. Selle admitted that he did not know the precise and direct cause of the insured's death. For its part defendant introduced the death certificate, which gave 'Cerebral Vascular Accident, Malignant Hypertension' as the cause of death, as well as the records of St. Louis County Hospital, in which the final diagnosis was given as 'Cerebral hemorrhage due to hypertension. Hypertensive cardiovascular disease.' Defendant's medical witnesses were Dr. Curtis Lohr, Superintendent and Medical Director of St. Louis County Hospital, Dr. Orhan Sansoy, Chief Resident of Medical Service in the same hospital, and Dr. Charles W. Miller, an independent physician who limited his practice to internal medicine. In brief, it was their opinion that the insured's death was caused by a cerebral hemorrhage, due to hypertension and hypertensive cardiovascular disease, and that the heat played no part in his death.

Prior to the closing arguments the plaintiff offered, and the trial court refused to give, instruction No. B, which told the jury that the burden was on the defendant to prove that the proximate cause of the death of the insured was his pre-existing condition of hypertensive cardiovascular disease and arteriosclerosis. The court's refusal to give the requested instruction is assigned as plaintiff's first complaint of error, her contention being that the defendant had the burden of proof on its pleaded defense that the death of the insured resulted from bodily infirmity or disease. To support her argument she cites a long list of cases beginning with Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592, 596, 61 L.R.A. 459, 97 Am.St.Rep. 560. In that case the plaintiff claimed that the insured's death resulted from a ruptured kidney sustained when a pole, which he was using in an attempt to close the upper sash of a window, slipped, throwing him upon his side against the edge of the table. An autopsy revealed that the kidney was ruptured, and the lower end cancerous. Defendant pleaded that the insured had died as the result of the diseased kidney. Plaintiff in that case offered, and the trial court gave, an instruction which told the jury that the burden of proving that the deceased's death was caused by disease was upon the defendant, and 'unless they believe from the preponderance of the evidence that said death was...