Kahn v. Metropolitan Casualty Insurance Co., a Corp.

• Decision Date: 06 April 1922
• Docket Number: 21770
• Parties: Lillie Kahn, Respondent, v. Metropolitan Casualty Insurance Co., a Corporation, Appellant
• Court: Missouri Court of Appeals

240 S.W. 793

Lillie Kahn, Respondent, v. Metropolitan Casualty Insurance Co., a Corporation, Appellant

21770

Court of Appeals of Missouri

April 6, 1922

Rehearing denied April 29, 1922.

Woodson Judge. Walker, Graves, & Elder, JJ., Concur. David Blair Judge & James Blair, C.J., Concur in the result. Higbee dissent with separate opinion.

OPINION

EN BANC

Woodson, Judge.

STATEMENT

The plaintiff brought this suit in the Circuit Court of Jackson County against the defendant to recover the sum of $ 7,500.00 on a policy of insurance issued for her benefit by the company in the life of Max Kahn, her now deceased husband.

A trial was had in the Circuit Court, which resulted in a judgment in favor of the plaintiff for both principal and interest aggregating $ 8002.504

After moving unsuccessfully for a new trial the defendant duly appealed the cause to this Court.

The pleadings are in no way challenged, and therefore we put them aside without further notice.

Counsel for the respective parties have filed printed statements briefs and citations of authorities. as required by Rule 15 of this Court. That rule provides that the respondent may adopt the statement of the case made by appellant, or, if not satisfied therewith, he shall in a concise statement correct any errors contained in that of the appellant. Respondent has refused to adopt the, statement of the case as made by counsel for appellant and has proceeded to make their own statement thereof, to which counsel for appellant have made no objection.

After a careful reading of both statements and a comparison with the abstract of the record we are of the opinion that appellant's statement is neither fair, full nor complete and for that reason we reject it and adopt that of counsel for respondent, which in our opinion is a fair, just and complete presentation of the case, which in substance is as follows:

We regret that it becomes necessary for us to make a full statement of this case. This duty devolved upon counsel for appellant, but in his zeal for the cause of his client, he was blinded to the facts in preparing his statement of the case, and therefore, this court cannot get a fair impression of the case from appellant's statement.

Respondent, Lillie Kahn, was named: as the beneficiary in an accident policy of insurance issued by appellant, Metropolitan Casualty Insurance Col, to Max Kahn. It was agreed in the policy to pay the beneficiary the sum of $ 7,500 in the event the assured sustained "bodily injuries directly, solely and ex-elusively through accidental means" and if such injuries "directly, solely, exclusively and independently of all other causes, and within ninety days of the date of the accident should result in his death." Respondent recovered judgment for the fact amount of said policy, with interest, aggregating $ 8,002.50, on the 12th day of June, 1919, and from which judgment appellant duly appealed to this court.

Defendant, by its answer, admitted the execution and' delivery of the policy and its renewal so that same became and was effective until July 1, 1918, and admitted that on April 11, 1918, the insured died, and that the plaintiff was his wife and is now his widow, but denied all the other allegations. The answer then set out the following provision of the policy sued on:

"The company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim herein, and also the right and opportunity to make an autopsy in case of death, where it is not forbidden by law."

Lillie Kahn, the respondent, testified that she was the wife of Max Kahn, the insured, and now his widow and beneficiary named in the policy, and identified the policy and renewal receipts found among the effects of the said Kahn; and there-upon the policy and renewal receipts were introduced in evidence and read to the jury, and appellant's counsel made the following admissions:

"Mr. Rosenberger: I forgot to state, and I state it now for the benefit of the court and jury that the defendant neither by its pleadings or by its answer or its attitude at this trial is making any point or contention that the preliminary requirements in the matter, of making formal claim or the service of any paper upon the company were not complied with."

Witness further stated that assured died April 11, 1918.

George W. Morgan testified that he was the caretaker' of Wales Lake about one mile from Excelsior Springs, in Clay County, and that on the 11th day of April, 1918, he was in charge at the boathouse of said lake; that Max Kahn, the assured, came to the residence of Mrs. Wales, near the lake, saying he waited to fish. Witness was absent at the time in Excelsior Springs, but upon his return found the assured waiting for him at the boathouse. The assured told witness that "some friends in Kansas City told him to come down there, that it was good fishing, and one thing and another, and I really don't know exactly what our conversation was, I talk to so many men * *. He aid he wanted, to fish from a boat * *. He looked sick or in bad condition, and I tried to persuade him not to take a boat."

Witness tried to get the assured to fish from the bank. He said, "he looked like he was a sick man to me", and he noted the following appearance: "Well, one, I saw, his color. He had a very bad color, That is about the onlything that I could tell that he was sick. He looked like he had a swarthy or bad complexion. His complexion was bad." But witness said he did not see anything about his manner. He said further, "He seemed to be in a good humor. I did not see anything about his talk that would indicate anything, but I asked him if he didn't have heart trouble. That was my reason for not letting him have the boat. I didn't want to let him have it. He didn't answer me. He said he was a sick man. That's about all he said to me. He didn't tell me whether he had heart trouble or not."

Assured got the boat, was pushed off from the north shore of the lake, turned the boat toward the south, and rowed to a point on the west island of the lake where he stopped, unwound the line on his fishing pole, and then pulled right out toward the east and into the main channel of the late; aid then "I turned around back to the door, ans saw him fall out of the boat." Witness went down to the lake, shoved out another boat and went to the assured, and caught him by the coat collar; and, "When I raised him up he spit a lot of water out of his mouth, and the water came out of his mouth when I raised him up." Witness called to some parties on the railroad track on the north side of the lake to aid him in getting assured out of the water* He said at the time assured fell out of the boat, it looked as if he had tried to raise up and "Was kind of in a stooping position," that he was facing west at the time and fell on his left side. He further said: "Q. What did his body do at the time he fell? A. When he fell out of the boat the wind was blowing, and probably had something to do with it. The front end of the boat he had been in turned a little towards me, because when I rowed up there it looked to me like the boat had turned a little bit, when I got up there it had turned around a little to the north, the front part of the boat." Witness said that the assured was floating on the surface of the water when he got to him; that he breathed after he had gotten him on the shore. "I never touched. him until he began doing that (breathing), and when he did that I went to working his arms. I thought he was 'going to come through."

Witness was there when Dr. Kirkham came, and when assured's tongue was held down with a depressor, a little water came out of his mouth. Witness said that in falling to the left, the assured fell out over the oar-lock on the right side of the boat, and that there were some nails in and about the oar-lock.

Dr. W. L. Wysong, a graduate physician and surgeon, and. coroner of Clay County where the accident occured was called to examine the body. "Q. And what was the appearance of his body when you cam up and saw it? A. Well, it looked blue, just looked like he had- I don't know, just a blue color * *. Well, the skin, it just looked like, we call it a cyanosed condition, blue, just clotted blood * * *. Q. What was the appearance of his face? A. It was blue, dark."

Witness further said that he had the body removed to Excelsior Springs, where he strip-pea the body and made a further examination, and found a flesh wound where the assured had been injured on the left breast. There was a puncture to the rib. "It just looked like a stab wound, like he had fell against something or been hit with something and jabbed a hole in that there. I couldn't imagine anything else could do it." Q. Doctor, to be specific, did it have the appearance of a sharp or blunt instrument? A. Blunt."

Witness, in answer to a hypothetical question, said that shock and strangulation could have caused death.

Claud T. Goble testified that he was a brother of the respondent and a practicing lawyer in Kansas City. He attended to the preliminary notices to the appellant, about which there is no controversy, and concerning the autopsy said that he had called. Dr. Coffey, the coroner of Jackson County, with Dr. Snider helping him to make an autopsy. Dr. Coffey, would not act in his official capacity, and witness said: "Q. Was Dr. Coffey your personal physician? A. No. sir, but was the physician of Camp 200 2 of. Modern Woodmen of America, and flax Kahn had an insurance policy in that company, and I anticipated a contest there and I had that physician hold the autopsy." Witness instructed Dr. Coffey to hold an autopsy, and said he had not given him...