Koprivica v. Standard Acc. Ins. Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15756.,15756.
• Parties: KOPRIVICA v. STANDARD ACC. INS. CO.
• Court: Missouri Court of Appeals

218 S.W. 689

KOPRIVICA v. STANDARD ACC. INS. CO.

No. 15756.

St. Louis Court of Appeals. Missouri

January 6, 1920.

Rehearing Denied March 2, 1920.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

"Not to be officially published."

Suit by Mihajlo Koprivica against the Standard Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson, Gilbert & Hayden, of St. Louis, for appellant.

Eugene Hale, of Louis, for respondent.

BIGGS, C.

A suit upon an accident policy by a brother of the insured, who was named as beneficiary in the policy.

No question arises upon the pleadings. After a verdict for plaintiff for the full amount of the policy, $570, the trial court sustained defendant's motion for a new trial on the ground that the verdict was against the weight of the evidence, making a proviso, however, that defendant should pay all accrued costs in the case within ten days. Defendant refused to pay the costs, and the court thereupon overruled its motion for a new trial.

Defendant brings the case here, and contends that there was no evidence warranting the submission of the cause to the jury.

By the policy, dated May 7, 1914, defendant insured Damjan Koprivica, brother of plaintiff, "against loss resulting directly, exclusively, and independently of all other causes from bodily injuries sustained * * * solely through external violent, and accidental means."

Policies of the character of the one in suit have been before the courts of this state a number of times, and the terms have been construed. The burden was upon plaintiff to prove that the insured suffered bodily injuries through accidental means, and further that such injuries produced the death of the insured directly, exclusively, and independently of all other causes. At least there must be sufficient facts established by the evidence from which a reasonable inference can be drawn that the injury received by accidental means was the sole cause of death. Goodes v. Commercial Travelers, 174 Mo. App. 330, loc. cit. 346, 156 S. W. 995; Brunswick v. Standard Accident Insurance Co., 213 S. W. 45, not yet officially reported; Wright v. Commercial Travelers, 188 Mo. App. 457, 174 S. W. 833; Dunn v. Insurance Co., 197 Mo. App. 457, 196 S. W. 100; Lamport v. Ins. Co. (Sup.) 199 S. W. 1020.

All that plaintiff's evidence discloses is that a barrel full of beer weighing about 1,200 pounds fell against the insured's chest on July 5, 1914. Plaintiff testified the barrel fell on insured's belly, on his chest; that thereafter he was pale in the face and could not talk and was put to bed; that he was sick that night, and on the afternoon of the next day he was taken to the City Hospital, where he died on August 14th, about six weeks later; that before July 5th the insured was strong and healthy. Plaintiff did not summon a doctor at the time of the accident or produce any of the hospital physicians. As far as plaintiff's evidence is concerned, all that is shown about the insured after he was sent to the hospital is that two days thereafter he could talk, and on August 14th following he died. Evidently plaintiff was mistaken about the weight of the barrel, as we happen to know that the ordinary full beer barrel weighs about 350 pounds.

From this evidence, standing alone, the inference could be drawn that the accident caused the death. However, the defendant produced positive testimony that the immediate cause of death was pneumonia followed by congestion of the lung. Dr. Meyers, of the City Hospital testified that, when the insured arrived, the doctors could not diagnose his case, and in about a week thereafter they performed an exploratory operation, which developed a case of appendicitis; that the appendix was removed, and that the patient recovered from the operation; that during the convalescing period pneumonia developed, and following pneumonia an abscess developed in his lungs; and that the immediate cause of the death was abscess in the lung. This evidence was uncontradicted.

When this evidence appeared in the case that the immediate cause of death was congestion of the lung, the right of plaintiff to have the jury draw a further inference that the insured died from the effects of the accident or that the lung congestion was caused by the accident vanished, and' it was then the duty of plaintiff to produce evidence tending to show that the congestion of the lung was or could be caused by the accident. Guthrie v. Holmes, 272 Mo. 215, loc. cit. 233-235, 198 S. W. 854, Ann. Cas. 1918D, 1123; Hurck v. Railroad, 252 Mo. 48, 158 S. W. 581; Sowders v. Railroad, 127 Mo. App. 119, 104 S. W. 1122.

The fact of the accident being established, and as a result thereof insured was taken to the hospital, where he afterwards died, permitted the jury to infer, if they chose, that the accident caused the death, but, as said by Nortoni, J., in Sowders v. Railroad, 127 Mo. App. loc. cit. 124, 104 S. W. 1123 in referring to presumptions of fact proceeding from other facts in proof:

"They are therefore rebuttable or disputable as a matter of course. Inasmuch as such presumptions merely...