Layton v. Metropolitan Life Ins. Co.

• Decision Date: 06 January 1936
• Docket Number: No. 18460.,18460.
• Citation: 89 S.W.2d 576
• Parties: LAYTON v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

89 S.W.2d 576

LAYTON v. METROPOLITAN LIFE INS. CO.

No. 18460.

Kansas City Court of Appeals. Missouri.

January 6, 1936.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by Fannie Layton against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and cause remanded.

LeRoy A. Lincoln, of New York City, and Montgomery, Martin & Montgomery, of Sedalia, for appellant.

Herman Epstein, Thomas C. Swanson, and John A. McGuire, all of Kansas City, for respondent.

CAMPBELL, Commissioner.

The defendant issued three policies of life insurance to Charles Layton and attached to each policy a rider as follows:

"Industrial Policy Accidental Death Benefit. Upon receipt of due proof that the insured, after attaining age 15 and prior to attaining age 70, has sustained, after the date of this policy, bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the insured within 90 days from the date of such bodily injuries while this Policy is in force, * * * the company will pay in addition to any other sums due under this Policy and subject to the provisions of this Policy an Accidental Death Benefit equal to the face amount of insurance then payable at death. * * *

"No accidental death benefit will be paid * * * if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease or by bodily or mental infirmity. * * *"

Charles Layton, hereinafter called the insured, died on July 18, 1931: The defendant paid to the widow of the insured, plaintiff herein, the amount of life insurance stipulated in the policies and denied that the death of insured was caused by accidental means. Thereupon, plaintiff brought this suit seeking to recover the indemnity provided in the riders, had a judgment, from which the defendant has appealed.

Plaintiff's petition alleged that the insured "died instantly of injuries sustained through external, violent and accidental means * * * in that his body was prostrated by intense heat thereby causing his death by heat prostration."

The answer was a general denial, statement of the terms of the riders, and charged that the death of insured was caused or contributed to directly and proximately by disease or bodily infirmity.

The defendant argues that there was no evidence tending to show that death was due to heat prostration.

Plaintiff's evidence tends to show that the insured, about 6:30 o'clock on the morning of the day of his death, left his home to go to work. The day was hot; "it was suffocating hot." His place of work was in a box car in the terminal yards in Kansas City and his work and that of his coworker consisted in moving sacks of coffee, each weighing 133 pounds, from the box car and placing them on a truck. In a few minutes after the work of loading the sacks on the truck was completed, the insured suddenly fell to the floor of the box car and never thereafter moved or breathed. He was pale; his face and hands were cold; there was no nausea or shortness of breath or complaint of weakness. The insured, during the fifteen years immediately preceding his death, was engaged constantly in hard manual labor and appeared to be in good health.

Counsel for plaintiff propounded to Dr. Osborne a hypothetical question in which was included the foregoing evidentiary facts, and concluded the questions as follows:

"Now then, assuming all those things to be true, I want to ask you first this question, Doctor, in your medical opinion might or could heat prostration have been the cause of that man's death? * * * A. Yes, I should say in that case he could have died of heat exhaustion.

"Q. Might or could have? A. He could have, yes.

"Q. When you use the term `heat exhaustion' we are still talking about heat exhaustion and prostration? A. Meaning the same thing, yes, sir.

"Q. Now, Doctor, reconsidering and recalling this hypothetical question which has just been read to you and with the modifications and changes, in your medical opinion, do you think that the man died of heat prostration? A. Taking in the whole picture I should say he did."

The plaintiff was entitled to the benefit of any of the defendant's evidence which was favorable to her.

The defendant introduced in evidence the deposition of Dr. Turner who made a post mortem examination of the body of insured. In the direct examination is the following:

"Q. Doctor, was there anything in connection with your post-mortem findings to point to the cause of death? A. Yes, sir, there was.

"Q. To what do you refer? A. I refer to the fact that this man's blood refused to coagulate at the examination from a postmortem standpoint, which is very significant.

"Q. By refusing to coagulate, what do you mean? A. It means that the blood refuses to clot.

"Q. And from that finding what did you deduce? A. I deduced — first, I want to say as a preliminary that there are but two conditions under which we have blood refusing to clot, and that is asphyxiation due to carbon monoxide poisoning and in heat exhaustion. Under those two conditions, and I believe medical science will bear me out, we do not find the blood coagulating. And this man's blood did not coagulate on that day when I made an examination of a speciman of his blood."

Later in his evidence the doctor said that he concluded that the primary cause of death was heat exhaustion, and that chronic myocarditis was a contributing cause. Still later in his testimony he said that the blood of a person afflicted with an hereditary disease called hemophilia "refuses to clot."

The jury could believe all of the evidence of Dr. Turner or none of it; or accept it in part and reject it in part. Gould v. Chicago, Burlington & Quincy R. R. Co., 315 Mo. 713, 723, 290 S.W. 135. There is no claim that there was carbon monoxide gas in the box car, one door of which was open. Hence, the jury could find that Dr. Turner testified in substance and effect that the blood of insured revealed that death was caused by heat prostration, and the jury could also disbelieve that part of the evidence of Dr. Turner in which he said that in his opinion chronic myocarditis was a contributing cause of death. The opinion evidence of Dr. Osborne was based upon proven facts. The evidence of Dr. Turner was based upon a post mortem examination. That evidence, taken in connection with the evidence showing the physical condition of the assured and the kind of work in which he was engaged, was substantial evidence and sufficient to allow the jury to find that heat prostration was the cause of death. Kimmie v. Terminal R. R. Ass'n of St. Louis, 334 Mo. 596, 66 S.W. (2d) 561.

The defendant's evidence was to the effect that myocarditis was the sole cause of death. We cannot consider that evidence in passing on the question as to whether or not the case was one for the jury. The defendant urges that death caused by heat prostration was not sustained through accidental means.

In a well-considered opinion the St. Louis Court of Appeals in the case of Farmer v. Railway Mail Association, 227 Mo. App. 1082, 57 S.W.(2d) 744, held that a death caused by sunstroke was caused by external, violent, and accidental means. We are convinced that the principle announced in that...