King v. Benefit Ass'n of Ry. Employees

• Decision Date: 09 January 1945
• Docket Number: No. 26670.,26670.
• Citation: 184 S.W.2d 793
• Parties: KING v. BENEFIT ASS'N OF RY. EMPLOYEES.
• Court: Missouri Court of Appeals

184 S.W.2d 793

KING v. BENEFIT ASS'N OF RY. EMPLOYEES.

No. 26670.

St. Louis Court of Appeals. Missouri.

January 9, 1945.

Rehearing Denied February 7, 1945.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by Helen E. King against Benefit Association of Railway Employees upon an accident and illness income policy issued by defendant to plaintiff's husband. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman, of St. Louis, for appellant.

Robert L. Maul and John P. Griffin, both of St. Louis, for respondent.

BENNICK, COMMISSIONER.

This is an action by plaintiff beneficiary upon an accident and illness income policy of insurance issued by defendant to plaintiff's husband, James P. King, a switchman in the employ of the Terminal Railroad Association of St. Louis, whose death occurred on December 24, 1941. Upon a trial to a jury, a verdict was returned in plaintiff's favor for the aggregate amount of $1,573.25, comprising the principal sum of $1,450, with interest amounting to $123.25. Judgment was rendered in accordance with the verdict; and defendant's appeal to this court has followed in the usual course.

In the petition it was alleged that the death of the insured had occurred under such circumstances as to have brought it within the coverage of the policy, which provided a specific indemnity in favor of the beneficiary in the event death resulted from bodily injury sustained solely through external, violent, and accidental means.

The answer was a general denial, coupled with a defense that plaintiff had failed to comply with the terms and conditions of the policy respecting notice of injury and death and proof of loss.

In her reply, plaintiff set up that having given notice of the insured's death as soon as was reasonably possible, she was excused by the policy itself for any failure to have given notice sooner; and that inasmuch as defendant, after it had received proof of death, had thereafter denied liability upon the sole ground that the insured had not died of an accidental injury, it had thereby waived its right to claim that it had not been given sufficient notice and proof of death.

Plaintiff's evidence was to the effect that up until the very time of the insured's death, he had enjoyed good health, and had worked regularly at his job as switchman, the duties of which required him, along with other things, to climb on and off of moving trains, and sometimes to run ahead of moving trains to line up the switches for their approach.

On the day that he met his death, the insured and his crew were engaged in their regular switching operations in and around the several industrial plants located in the vicinity of that portion of the Terminal tracks which extend between the Florissant Avenue viaduct and Broadway, in the City of St. Louis.

There are in all three tracks at this particular point, two of them being the main tracks, and the third a switch track, referred to in the evidence as the Broadway siding. All the tracks run east and west, and are uniformly situated 7 feet apart, the eastbound main track being the one to the south, the westbound main track in the middle, and the Broadway siding to the north.

There would appear to have been no dispute in the evidence except as to the immediate cause of the death of the insured, who was last seen alive about 4:00 o'clock in the afternoon of the day in question. This occurred when he asked permission from his foreman to leave the engine at the yard clerk's office for the purpose of putting in a telephone call which he wished to make. His request was granted with the understanding that he would be picked up on the crew's return from their ultimate destination; but when they passed the point about an hour later, after their switching operations had been completed, the insured was nowhere to be seen.

Shortly before 8:00 o'clock that night, the police department was notified that the insured's body had been discovered, and when the crew of a scout car went to the scene to investigate, the officers found the body lying midway between the westbound main track and the Broadway siding, at a point about three blocks from the Florissant Avenue viaduct. A cursory examination of the body disclosed scratches or cinder marks on the hands and face, and an inch and a half laceration across the forehead. Immediately south of the eastbound track, and a little east of the point where the body was lying, the officers found the insured's watch and chain and spectacle case, all lying close together. The watch was stopped at 7:03 o'clock, and a part of the chain was flattened out as though the wheel of an engine or car had passed over it. It also appears that the spectacle case was bent, or at least it was shown in that condition when plaintiff saw it at the police station, where her husband's effects were taken when the body was removed to the morgue. His cap was found by the officers on a "sort of a bank" about 3 feet above the level of the roadbed, and about 5 feet distant from the point where the watch and spectacle case were lying.

Later in the evening a friend of the family went to the morgue to identify the body, and his testimony was that in addition to the scratches and lacerations observed by the officers, he found numerous other abrasions, contusions, and injuries, the principal one being to the chest, which "appeared to be crushed — was a large one — it was sunken in, crushed like".

As for the movement of trains along the portion of the tracks where the body of the insured was found, it was shown that in addition to several switch engines, a Rock Island freight and a two-section Wabash train had passed the point during the couple of hours between the time the insured was last seen alive and the time his body was discovered. The movement of the Wabash train was perhaps the more significant, in that on this occasion it had used the eastbound track for a westbound movement, due to the fact that the Terminal crew was working on the westbound track at the time. This train went out about 6:25 p. m., and its movement over the eastbound track was "rather unusual".

Defendant had but a single witness, Dr. John J. O'Connor, the coroner's physician, who performed an autopsy on the body of the insured while the body was at the morgue and before rigor mortis had set in. Dr. O'Connor testified to the abrasions and contusions over the body, which he regarded as superficial and not sufficient to cause death, but stated that in his examination of the body, he found no injury to the chest. The internal organs of the body were all found to be negative except for the heart, where he noted a hypertrophy of the myocardium or heart muscle, with sclerosis of both coronary arteries, and a thrombus or blood clot in the left coronary at the bifurcation or point of division. In his opinion, the cause of death was coronary sclerosis and coronary thrombosis, with nothing else indicated that could have caused death. On cross-examination, he testified that he had never known of a coronary thrombosis being caused by a blow; and stated that in the particular case, his opinion was that a blow "did not have anything to do with it".

In rebuttal, plaintiff put on Dr. M. G. Houghton, who testified as an expert witness in response to hypothetical questions and on the basis of the testimony he had heard given by the previous witnesses in description of the injuries the insured had received. His testimony was to the effect that a blow on the chest, or a severe strain or shock, can produce a thrombus; and that in the case of a thrombus caused by a blow, death usually follows rather suddenly, and in fact immediately, where the clot is in the bifurcation. He also stated that in the case of a thrombus resulting from arteriosclerosis, the formation of the thrombus is usually preceded by severe anginal pain, which would become aggravated upon exertion. On cross-examination, he admitted that a thrombus from strain, shock, or trauma is not "very common"; and that while a sudden body shock "like a blow anywhere on the body, or getting knocked off the railroad track on the side of the track, or falling off a train" could have produced...