Killam v. Travelers Protective Ass'n of America

• Decision Date: 02 May 1939
• Docket Number: No. 24997.,24997.
• Citation: 127 S.W.2d 772
• Court: Missouri Court of Appeals
• Parties: KILLAM v. TRAVELERS PROTECTIVE ASS'N OF AMERICA.

127 S.W.2d 772

KILLAM v. TRAVELERS PROTECTIVE ASS'N OF AMERICA.

No. 24997.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

Rehearing Denied May 16, 1939.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Suit by Sabria Killam against the Travelers Protective Association of America to recover on an accident insurance policy. Judgment for plaintiff, and the defendant appeals.

Judgment affirmed.

Maurice P. Phillips, of St. Louis, for appellant.

Jones, Hocker, Gladney & Grand and Web A. Welker, all of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was begun on August 20, 1936, in the circuit court of the city of St. Louis by Sabria Killam, widow of Arthur Killam, deceased, against The Travelers Protective Association of America.

The petition in substance contained the following allegations: That defendant is a Missouri corporation operating as a fraternal benefit society and authorized under the law to issue certificates of membership, or, policies of insurance, to its members, insuring them against death resulting from bodily injuries sustained through external, violent and accidental means independent of all other causes; that on July 1, 1932, defendant issued to Arthur Killam what is designated as its "Class A. Certificate of Membership", No. 204,419, whereby it agreed, in accordance with its constitution and by laws, to pay plaintiff, the wife of said Arthur Killam, the sum of $5,000 in the event of his death, while a member in good standing of the defendant, as a result of a bodily injury received through external, violent and accidental means independently of all other causes; that on November 13, 1935, while duck hunting in Big Lake, a short distance north of the city of Charleston, in Mississippi County, Missouri, Arthur Killam was drowned and his said death was a result of a bodily injury received through external, violent and accidental means within the meaning of said certificate of membership and the constitution and by laws of the defendant; that said Arthur Killam during his lifetime complied with all the terms and conditions of the certificate of membership and with the constitution and by laws of the defendant; that following his death plaintiff duly notified the defendant of such death and made demands on it for the payment of the sum of $5,000 due under the aforesaid certificate of membership and its constitution and by laws, but that defendant refused to pay; that wherefore, judgment was prayed for $5,000 with interest thereon at the rate of six per cent per annum from November 13, 1935, and costs.

Defendant's amended answer in substance contained an admission that it is a corporation organized under the laws of Missouri as a fraternal beneficiary society and as having authority to issue certificates of membership to its members against death resulting from bodily injury through external, violent and accidental means, independently of all other causes; an admission that it issued a certificate of membership to Arthur Killam as alleged in the petition and that Arthur Killam died on November 13, 1935; and a denial of each and every other allegation in the petition contained.

The amended answer also contained divers and sundry exemptions whereby defendant was not obligated to pay anything for the death of said Arthur Killam and charged that his death was directly caused by and was the result of a severe bodily infirmity and badly diseased heart condition, which death resulted from his over exertion in carrying a large box of lunch and in undertaking to free his boat from the mud, and denied liability under the certificate.

The case was tried to a jury, and on the 9th day of June, 1937, the jury returned into court a verdict in favor of the plaintiff for the sum of $5,000 with interest at the rate of six per cent per annum, from November 13, 1935, amounting in the aggregate to $5471.32, upon which verdict a judgment was rendered on said June 9, 1937.

After an unavailing motion for a new trial the defendant brings the case to this court by appeal for review.

The deceased, Arthur Killam, was about fifty-six years old at the time of his death. He was about six feet tall and weighed approximately 185 pounds. He was apparently a strong, robust and active man, having lived an outdoor life, and his favorite vocation was that of sportsmanship. He had hunted small game all his life in various parts of the country. His activities in the hunting line were confined to "wing" shooting ducks, geese, doves, pheasants and quails. For several years prior to his death he was employed by the Remington Arms Company, and prior to that, was employed by the Du Pont Powder Company and the Parker Gun Company. For more than thirty years he had been a salesman of ammunition and guns for these companies. A major part of his work was to attend "shoots" at gun clubs all over the United States. Over the traps he had fired in excess of 50,000 shots a year for the last several years of his life. In the last eighteen months of his life he had driven his car approximately 57,000 miles. He was a champion shot, averaging above 96 per cent, and had won many prizes. Just a few days preceding his death he had been on a pheasant hunt in South Dakota, 800 miles from St. Louis, and after hunting three days he and Dr. Hagerty made a non-stop drive back to St. Louis and he did most of the driving. He then went with some customers of his company on a quail hunt in north Missouri, for three days, and, upon his return he went on a duck hunting trip to Charleston, in Mississippi County, Missouri, and on this trip was accompanied by Eugene Palmer, District Manager of the Remington Arms Company, and Edgar C. Palmer, brother of Eugene, who was on a visit here from the east.

The party arrived at Charleston in the late afternoon of November 12, 1935, and were guests at a duck dinner arranged by friends. Early the following morning they were joined by Andrew French and W. G. Harris of Charleston, and the party drove in two cars four miles northeast of Charleston. The cars were left on the lake shore and they took boats to go to their duck blinds. Eugene C. Palmer, Harris and Killam went to one duck blind 200 or 300 yards from where the cars were parked, and Edgar C. Palmer and Andrew French went to another duck blind farther away. By prearrangement, the keeper of the restaurant, where they had dined the evening before, was to prepare a new meal and put it in thermos jugs, for which someone would call around noon of the 13th.

It was agreed that Mr. Killam should go to Charleston and bring back the lunch. He was gone for a time and Eugene C. Palmer and Harris heard, what they thought to be Killam's return, the stopping of a car and the slamming of the door. A few minutes thereafter, French and Edgar C. Palmer, in accord with previous arrangements, came to the blind occupied by Harris and Eugene C. Palmer, expecting to have lunch. Shortly before that, Harris had killed a duck, which fell between the blind and where Killam had stopped his car on his return from Charleston. The car could not be seen from the blind occupied by Palmer and Harris because of a fringe of willow trees along the shore of the lake.

At the request of Eugene C. Palmer and Harris, French and Edgar C. Palmer picked up the duck that had been killed by French and rowed towards the shore to see if Killam had returned with the lunch. As they neared the willow fringed shore they came adjacent to a lane that had been cut through the willows from the open water to the bank. There they saw the boat which Killam had used to go to the shore and, in the bottom was a paper carton which contained the lunch.

Upon coming closer to the boat they saw Killam lying face up in about three feet of water, his head about eight inches below the surface of the water and his feet in the bottom of the lake. They jumped from their boat and lifted Killam into the boat which contained the lunch. His face was a purplish-blue cast and he had a blue mark about two inches long and an inch wide on one cheek. They placed him in the boat and applied artificial respiration with no avail excepting that about a quart of water ran out of his nose and mouth.

A coroner's inquest was held at Charleston, Missouri, following which Killam's body was brought to St. Louis and buried.

About a week after the burial the defendant asked that his body be exhumed and an autopsy held, which was done and physicians examined the parts of the body.

The sole question to be determined was whether the insured died from drowning or from a heart attack. There was evidence tending to support the claim that he was drowned, and there was also evidence tending to support the claim that a heart attack had caused his death. The physicians who testified on opposite sides were generally agreed that if a person died from drowning there would be found in the lungs or trachea foreign bodies peculiar to the water in which the party drowned.

The principal witness who testified that the insured died from drowning, was Dr. R. B. H. Gradwohl, a graduate of Washington University Medical School of the year 1898 and who had taken post-graduate work since that time at various schools abroad, the University of Berlin, University of Vienna and Heidelberg, and was member of the St. Louis Medical Society, Missouri State, American Medical, Society of American Bacteriologists, and had specialized in what is known as clinical pathology, a department of medicine concerned with the investigation of the causes of disease by studying the various excretions of the body, autopsy work and microscopic examination of organs obtained in autopsies. He attended the autopsy conducted under the auspices of Dr. D. L. Harris, who represented the defendant, and testified that he examined the residue taken from Killam's respiratory tract and that in that residue he found what he called a...