Johnson v. Continental Casualty Co.
| Citation | 99 S.W. 473,122 Mo.App. 369 |
| Parties | JOHNSON, Appellant, v. CONTINENTAL CASUALTY COMPANY, Respondent |
| Decision Date | 22 January 1907 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
James J. O'Donohoe for appellant.
The court erred in giving a peremptory instruction to the jury to find for defendant. Laessig v. Travellers' Protective Ass'n., 169 Mo. 281; Summers v. Fid. Mut. Aid Ass'n., 84 Mo.App. 605; Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Columbia P. S. Co. v. Fid. & Casualty Co., 104 Mo.App. 157.
Jones Jones & Hocker and Manton Maverick for respondent.
(1) Under the testimony plaintiff failed to show that the death of the insured was due to external, violent and purely accidental causes. Hook v. Railroad, 162 Mo. 581; Spiro v. Transit Co., 102 Mo. 250; Young v Railroad, 113 Mo.App. 636; Laessig v. Travelers' Pro. Ass'n., 169 Mo. 281; Warner v. Railway, 178 Mo. 125; Smart v. Kansas City, 91 Mo.App. 586; Wilber v. Railway, 110 Mo.App. 689; Sharp v. Mut. As. Assn., 189 Ind. 192; Ins. Co. v. Seldon, 78 F. 285; Freeman v. Mercantile As. Ass'n, 156 Mass. 351; National Masonic Ass'n v. Shyrock, 73 F. 774; Carr v. Life Ins. Co. 100 Mo.App. 602. (2) The plaintiff's case failed to show a compliance with the conditions precedent to recovery under the policy, i. e., notice to defendant of the insured's sickness or death within fifteen days thereafter. Delzell v. F. & C., 176 Mo. 281; Fink v. Ins. Co., 60 Mo.App. 673.
--This is an action on an accident insurance policy issued to the father of the plaintiff and providing, among other things, that if the insured died within ninety days of receiving an accidental injury by external violence and as the consequence of said injury, an indemnity of $ 400 would be paid to plaintiff. There were other clauses providing indemnities to be paid to the insured for injuries not resulting in death. The cause was instituted before a justice of the peace, whence it was appealed to the circuit court. The trial in the latter court resulted in a verdict for defendant pursuant to the order of the court. Plaintiff appealed.
The evidence shows that during the life of the policy and on May 13, 1904, the insured died; and the question is whether the testimony tended to show his death was the result solely of an accidental injury inflicted by external violence. The insured was a motorman in the employ of the St. Louis Transit Company and was insured as such. About seven o'clock in the evening of April 29, 1904, he met with a fall in his home and the injuries then received are said to have caused his death two weeks later. Persons who saw the fall testified regarding it, and other witnesses who did not see it, but saw the deceased immediately afterwards, testified as to his appearance and condition following the fall. According to the testimony of the witnesses who saw the accident, deceased had gone from one room of his home to another to get a drink and as he went back, fell against a dresser having a marble top and from thence to the floor. The marble slab of the dresser was whole prior to the fall but was found to have been broken in two, either by the force with which deceased's head struck it, or by falling on the floor. Persons rushed at once to the relief of deceased and found him unconscious, a lump on his head under the right ear and a contusion under his shoulder-blade an inch or more long. He was lying on his back with his head against the wall of the room. He was lifted from the floor and carried to a bed which he never left; dying, as said, on the thirteenth day of May. He seemed to be in pain until the time of his death. A physician was called to attend him within fifteen minutes after he fell. The testimony tends to prove the fall was a violent one. It made considerable noise and attracted the attention of a man who lived in another house in the same yard. Deceased was unconscious the entire night following the accident, but afterwards was conscious part of the time, though he talked but little. A physician who was put on the stand by plaintiff and qualified as an expert, testified in answer to a hypothetical question embodying substantially the facts we have stated, that if a person met with such a fall as deceased did, was confined to his bed thereafter and died two weeks later, the death would be due to one of two conditions: traumatic pneumonia, that is pneumonia resulting from a violent injury, or cerebral hemorrhage. The physician said the patient must have died from one of those causes, but which one could not be known without knowing the patient's temperature at intervals, his other symptoms preceding death, and whether he had any prior disease; that if he was in good health before the accident, in the opinion of the witness, he must have died of one of said ailments. On cross-examination the physician said the patient, while in bed, might have contracted some other disease, like scarlet fever, and have died from that.
In our judgment the foregoing evidence made a case for the jury; and a finding from it that the death of the insured was due to an accidental injury caused by external violence could be upheld. For aught that appears the deceased was in good health prior to the accident. The evidence tends to show he was; for he had been following his usual avocation of operating a trolley car. There was not the least testimony tending to show that after he was lifted from the floor in an unconscious state, which, if it was not the consequence of occurred simultaneously with the fall, he contracted a disease which could have led to his death. Beyond doubt the proof would support the inference that deceased was knocked into...
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