Martin v. Travelers Insurance Co.
| Decision Date | 06 October 1925 |
| Docket Number | 24725 |
| Citation | 276 S.W. 380,310 Mo. 411 |
| Parties | MAY MARTIN v. TRAVELERS INSURANCE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Transferred from Springfield Court of Appeals.
Reversed.
G. M Sebree and Mossman, Rogers & Buzard for appellant.
(1) The court committed error in refusing to give the jury defendant's demurrer to the evidence. (2) No liability upon the policy was established, as injured was not wholly and continuously disabled from date of injury until death. Doyle v. Ins. Co., 182 S.W. 944; Continental Cas. Co. v. Ogburn, 175 Ala. 357; Masonic Protect Assn. v. Farrar, 26 N. E. (Ind.) 435; Letherer v. Health & Acc. Co., 108 N.W. 491; Preferred Masonic Assn. v. Jones, 60 Ill.App. 106.
Hamlin & Hamlin and C. W. Hamlin for respondent.
The evidence clearly shows that the insured was totally disabled within the meaning of the law as applied to the conditions of the policy sued on. It is true that he possibly worked two shifts after being hurt but complained all this time. For the appellant to try to raise the question that "no liability upon policy was established, as injured was not wholly and continuously disabled from date of injury until death" is not justified by the facts and is hair-splitting. The case of Doyle v. New Jersey Fidelity Ins. Co., 182 S.W. 944, which is cited by appellant in his brief, says that "insured, a dentist, injured his finger with a burr, contracting blood poisoning in the wound, though for several days before he was forced to retire he was able to go to his office and perform part of his ordinary duties. After a month in bed, he returned to his office and for over three months performed all of his regular duties, dying suddenly at the end of that period. It was held that insured's disability was immediate and continuous during the time between the infliction of the wound and the development of the infection, and so "recovery cannot be defeated on the ground that there was no continuous disability."
Action upon a policy of accident insurance. Respondent is the widow of William H. Martin, the insured, whose death is alleged to have been the result of accident within the terms of such policy. Judgment below went for plaintiff, beneficiary, and defendant was granted an appeal to the Springfield Court of Appeals. There the judgment of the trial court was reversed for procedural errors and the cause was remanded. As it was deemed that the opinion of that court was in conflict with Mullins v. Masonic Protective Assn., 181 Mo.App. 394, a decision by the Kansas City Court of Appeals, the case was certified to this court.
The insured was a locomotive fireman, working in the railroad yards at Springfield, Missouri. The evidence offered by plaintiff tended to show that insured was thrown against the can rack over the fire door of the engine by reason of the sudden impact caused by the engine and string of cars bumping into some freight cars standing on the track. The engineer testified that, at or about the time of such impact, the insured was putting a shovel of coal into the fire and that he staggered against the can rack above the fire door and struck his shoulder. This was in the early part of the night shift. The engineer asked insured if he was hurt and he said that he was not. He made no complaint of injury later. Insured continued at work until 4:30 A. M., his regular time of quitting.
From the testimony of the plaintiff, it appears that the alleged injury must have occurred on September 15th. She said that insured came home from work at the usual time next morning and complained of his back and showed her a place about the size of a hen egg, close to the backbone on the left side and just above the hip. She testified that insured returned to work that night and the following night. From this testimony we conclude that insured worked the greater part of his shift after he was injured and the two following shifts. Without entering into details of the testimony, it suffices to say that the evidence of plaintiff tended to show that insured thereafter became totally disabled. He never returned to work and died November 20, 1920.
The defendant contended below, and now contends, that the injury to insured's back, if any, was not caused by the impact between the engine and the freight cars and that, even if it was so caused, such injury was not the cause of insured's death and that his death was caused by disease. We will assume, without deciding, that the evidence offered by plaintiff upon such issues tends to support the verdict of the jury, and proceed directly to a consideration of the question we regard as determinative. That question is: Was insured, by reason of such accidental injury, wholly and continuously disabled from date of accident, within the meaning of the policy?
The policy contained the following provision:
"If such injuries shall wholly and continuously disable the insured from date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability but within one hundred and twenty days from date of accident, shall result, independently and exclusively of all other causes in any one of the losses enumerated in this part, the company will pay the sum set opposite such loss," etc. (Italics ours.)
It was then provided that for loss of life the company would pay the principal sum of the policy, which was $ 1000.
That insured was wholly and continuously disabled from a period two or three days after the time of his alleged injury to the date of his death, there is no question on this record. Nor can there be any doubt that he was not wholly and continuously disabled from the night of September 15th, when the alleged injury was received, until after the completion of his night's work, on the shift beginning September 17th, from performing any and every kind of duty pertaining to his occupation. The question then is whether an injury suffered through accident which does not result in wholly and continuously disabling the insured for two or three days after the accidental injury comes...
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