Martin v. Travelers' Ins. Co

• Decision Date: 29 January 1923
• Docket Number: No. 3284.,3284.
• Parties: MARTIN v. TRAVELERS' INS. CO
• Court: Missouri Court of Appeals

247 S.W. 1024

MARTIN v. TRAVELERS' INS. CO

No. 3284.

Spring field Court of Appeals. Missouri,

January 29, 1923.

Rehearing Denied February 13, 1923.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Mary Martin against The Travelers' Insurance Co. From a judgment for plaintiff, defendant appeals. Reversed and remanded and certified to the Supreme Court.

G. M. Sebree, of Springfield, and Mosman, Rogers & Buzard, of Kansas City, for appellant.

Hamlin & Hamlin and C. W. Hamlin, all of Springfield, for respondent.

BRADLEY, J.

This is a suit on an accident insurance policy. Below plaintiff, the beneficiary, recovered at trial before a jury, and defendant appealed.

It is alleged that, while the policy was in force, the insured was injured in an accident, from the effects of which he died within the period provided in the policy to make defendant liable for loss of life. Insured was a locomotive fireman working in the yards in the city of Springfield. He went on duty at 8:30 p. m. and off at 4:30 a. m. It is alleged in effect that on September 15, 1920, while sent policy was in full force and effect, insured, while in the due performance of his duty as locomotive fireman, was injured by reason of the engine and cars attached thereto on which he was working colliding violently with other cars, and that, by reason of said injury, the insured was wholly and continuously disabled from the date of the accident, and that, because of said injury, and independently and exclusively of all other causes, insured died on November 20, 1920. The answer is a general denial, and an averment that the death of insured was not caused by bodily injury effected directly and independently of all other causes through"external, violent, and accidental means, but that said death was the result of disease.

Defendant assigns error as follows: (1) In the refusal of its instruction in the nature of a demurrer at the close of the case; (2) in the instructions given for plaintiff; (3) in the admission of evidence. We will consider these assignments in the order given.

The first assignment is bottomed upon two propositions: First, that there is no substantial evidence tending to show that insured's death was the result of injury arising from an accident; and, second, that, conceding the injury and accident and the death therefrom, still plaintiff cannot recover, because insured was not wholly and continuously disabled from the date of the accident.

Was there any substantial evidence tending to show that insured's death was, independently and exclusively of all other causes, the result of an accident? The alleged injury occurred about 9:30 or 10 o'clock on the night of September 15, 1920. The engineer with insured at the time gave the following version of what occurred:

"We were pushing the cars ahead of the engine going east into the freight house, and these cars that were standing down in the sag, we ran into them a little bit hard, and hit them hard enough to—there was no damage done, nothing was mashed up; it did not stop the cars nor engine we were pushing. When we rammed into these cars I stopped the engine, but the cars themselves would not have stopped it. Of course they would have stopped, but they would not have made a sudden stop. I heard the impact and knew I had struck something. I was seated in the window in the cab looking out at the time toward the east, looking the way I was going. Just about the time the cars came together one of the switchmen came out into view and gave a stop signal. I was going around this curve at this time when I struck something. After I stopped the engine, I didn't do anything, only set there in the window, and when he gave me a sign to come ahead we went on into the freight house. At the time of the impact or shortly afterwards I saw Mr. Martin putting in a fire. He was in a stooped position shoveling coal. I think about the time I stopped the engine he was putting the coal into the fire. At the time of the impact I was looking in the direction I was going, to the east. About the time the cars came together he was putting a shovel of coal into the fire. He just kind of staggered against the can rack above the fire door. I was sitting like this, in the cab window, and Mr. Martin was over there shoveling coal. I could see at a glance what had happened. I asked him if it hurt him, and he said, `No.' He just kind of staggered up against the can rack above the fire door—it's 12 or 14 inches wide—and I asked him if it hurt hire. Mr. Martin continued to work the rest of the night. We quit at 4:30 a. m. I don't remember whether he fired for me the next night or not. I don't remember the date it happened. He laid off on the 18th of September. I don't remember anything about that—what the date was when it happened. The last night he worked with me was September 17, 1920."

On cross-examination, the engineer said that the can rack was 12 or 14 inches wide, about 3 feet long, made of cast iron, and was bolted to the boiler head about 3 or 3½ feet above the floor of the cab. Speaking of the insured and the collision, the engineer said:

"When I came against this car he simply went forward up against the can rack with his left shoulder. He kept right on at that time shoveling coal until he got through. He put in several shovels of coal. I didn't see him rub his shoulder or see anything that indicated that he was hurt; he didn't make any complaint."

Another engineer familiar with this engine said that the can rack was 6 or 8 inches wide and was about 4 feet above the floor. The evidence showed that the insured was about feet tall.

Plaintiff testified that on the morning of the nth, when insured came in from work ha complained of his back and showed her a place—.

"right close to the back bone on the left side above the hip neer the spinal column. It war a place about the size of a hen egg and puffed up, white looking blister. It was right white looking, like a puff of wind or something. After it stayed on there it naturally turned brown. I treated it with liniment that morning. He went to work that night. After that I treated it by using home remedies like liniment. He worked the next night. He did not work the following night."

Plaintiff said that there was no bruised place on insured's back the morning before the alleged accident; that she was up when insured came in on the morning after the alleged accident, and that she noticed that "he was not walking right," that "he had his hand on the left side of his back and was coming like this," and said that he was suffering in his back. Not later than the morning of the 18th and possibly on the morning of the 17th of September, after the alleged injury about 9:33 or 10 p. m. on the 15th, insured ceased to perform any work. Insured was at his home in bed part of the time and up able to walk about part of the time from the time he came in from his last shift at work until October 23d, when he went to the Frisco Hospital in Springfield for examination. Four or five days after insured quit work it was noticed that he was at times "out of his head," and suffered in the region of the back all the time. Insured was at the hospital in Springfield only long enough to be examined and was returned to his home, where he remained without improvement until October 20th, when he was taken to the Frisco Hospital in St. Louis and was there examined, remained and was treated about a week, and returned home. After his return home he was treated by Dr. Coy, local physician, until his death on November 20th. Dr. Coy testified that the immediate cause of death was meningitis. There was expert evidence tending to show that meningitis might lie caused or superinduced by such an injury as plaintiff claimed the insured received.

At St. Louis a spinal puncture was made and a portion of the fluid drawn. This puncture was made at or near the place where plaintiff says that she saw the sign of injury on the morning of September 16th. Dr. Coy was first called to see the insured or. November 5th, and described his condition thus:

"I found him in bed, lying on his right side with his legs flexed, drawn up, and his head bent backward, drawn backward, in a comatose or unconscious condition. I examined his body. My attention was especially called to the back, where he bad been complaining mostly, and I found a dressing held on with an adhesive strip. Under that I found a discolored spot with the parts a little elevated; in the center of that was a hole. It looked like there had been something about the size of a 6 or 8 penny nail stuck therein. That is the condition I found at the time. Of course it was not tender from the fact that he was unconscious and did not know anything. He had no sensibility at all, but the part was a little elevated, I suppose the quarter of an inch; the whole part swollen around, perhaps, covering a space a little larger than a" dollar; maybe 2½ inches in diameter and elevated in the center. It was on the left side of the vertebras, and about 1½ inches to the left, and about even with the crest of the ilium; that is, the hip bone. There were no other bruised places on his body. I visited him every day from the 5th to the 20th of the month."

Dr. Tucker, called by plaintiff, said that spinal punctures are usually made on a straight line with the spinal process.

"We have the patient bend over to widen the spinal process and make the puncture right in the center of the back bone. Q. You say you wouldn't make it an inch or an inch and a half on the side? A. I would not say they wouldn't make it there; it is unusual."

W. McPheeters testified that he sat up with insured before he was taken to St. Louis; that he helped to change insured's clothing and saw insured's body before he was taken to St. Louis, and that he saw a reddish brown place on insured's body above the hip bone on the left side, in the small of the back. The above is...