Holt v. National Life & Accident Ins. Co.

• Decision Date: 06 June 1924
• Citation: 263 S.W. 524
• Parties: HOLT v. NATIONAL LIFE & ACCIDENT INS. CO.
• Court: Missouri Court of Appeals

263 S.W. 524

HOLT v. NATIONAL LIFE & ACCIDENT INS. CO.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied July 3, 1924.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Lulu Holt against the National Life & Accident Insurance Company. .7udgment for plaintiff, and defendant appeals. Reversed and remanded.

B. E. Hamilton, of St. Louis, for appellant. Leahy, Saunders & Walther, of St. Louis, for respondent.

NIPPER, C.

This is a suit on a policy of accident insurance issued by defendant to plaintiff's husband, Sterling Holt. In the policy, which was issued on the 15th day of April, 1915, plaintiff was made the beneficiary. The defendant agreed to pay plaintiff the amount of the policy if the insured died from bodily injuries effected accidentally and through external and violent means.

The petition alleges that on the 27th day of November, 1917, Sterling Holt died as a result of an injury sustained by falling against the corner of a pool table.

The answer denied the allegations in the petition, and specifically pleaded that the policy had lapsed by reason of deceased's failure to pay the premium for the month of October, 1917.

The evidence offered on behalf of plaintiff tends to show that the insured was operating a pool room in the city of St. Louis at the time he is alleged to have received his injuries, and that he fell against the corner of a pool table. The corner of this pool table struck the deceased's stomach. He fell to the floor, and, after being assisted to a chair, was taken to a hospital and an operation performed, and death resulted a short time after.

The insured was first treated by Dr. Powell, who lived in the neighborhood where the accident occurred. After being taken to the hospital, Dr. Kieffer was called in consultation and performed an operation on the insured. Dr. Powell was dead at the time this suit was instituted.

Dr. Kieffer testified that when he opened the abdomen of the insured he found an inflamed, strangulated diverticulum. He described this condition as one which had no office in the body, but was the result of faulty development. This diverticulum is a tube or branch which leads from the intestines to the umbilicus, and in a properly developed person this would be absorbed, but in this case it still existed. He testified that he found this tube bruised and strangulated; that the mere fact that the insured had this tube would not be sufficient to cause his death without something occurring to interfere with its activity. He stated that in his opinion the condition in which he found the insured was caused by some kind of an injury, and that the inflamed and strangulated condition of this tube caused his death; that he did not personally notice nephritis, and did not have any distinct recollection of the existence of such disease; that if a patient has nephritis he would hesitate to operate, but in this particular case the urgency was so great that even if he had noticed nephritis he would have risked an operation; that if he would have been filling out a death certificate he would have given the cause of death as inflammation of the diverticulum, and that if the deceased ha nephritis he would have given that as a contributory cause; that volvulus means a twist, but that it was not in this case; that the word "volvulus," as used in the proof of death, without applying to anything, had no meaning at all.

Plaintiff then introduced in evidence the following letter written by Dr. Powell to the assistant manager of the defendant company:

"Saint Louis, Mo., December 9, 1917.

"Mr. E. F. Baumgarten, Assistant Manager, National Life & Accident Insurance Co., 300 Central Y. M. C. A. Building, City—Dear Sir:

I am writing you in behalf of Mrs. Sterling L. Holt, widow of the late Sterling L. Holt, of 1419 North Grand avenue, who has carried a policy during the past four years in the abovenamed company.

"Mrs. Holt is laying claim for total disability of her deceased husband from April 24, 1917, to October 1, 1917. This claim is based on nephritis, a condition from which he recovered sufficiently to take up the light occupation of running a pool room from October 1, 1917, until two days before his death.

"We also lay claim to the principal sum for accidental death.

"Mr. Holt received a fall on the night of November 25, 1917, which caused his death two days later on November 27, 1917.

                    "Very respectfully yours
                                      "I. W. Powell, M. D."
                

Plaintiff also introduced in evidence the following reply thereto, written by the general manager of the defendant company:

                                 "December 18, 1917
                

"Dr. I. W. Powell, N. E. Corner Grand & Easton Sts., St. Louis, Alm—Dear Sir: Claim Sterling Holt, 99978. Your favor of the 9th inst., to our assistant, Mr. Baumgartner, has been referred to the home office. Your own letter shows conclusively that Mr. Sterling Holt was not entitled to any indemnity for the period of his disability. His policy does not pay indemnity...