Mayfield v. Metropolitan Life Ins. Co.

• Decision Date: 24 July 1979
• Docket Number: No. 10855,10855
• Citation: 585 S.W.2d 163
• Parties: Marcella R. MAYFIELD, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE CO., Defendant-Respondent. *
• Court: Missouri Court of Appeals

Page 163

585 S.W.2d 163

Marcella R. MAYFIELD, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE CO., Defendant-Respondent.^*

No. 10855.

Missouri Court of Appeals, Southern District, Division Three.

July 24, 1979.

Motion for Rehearing or to Transfer Denied Aug. 27, 1979.

Application to Transfer Denied Oct. 10, 1979.

W. H. Winchester, III, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, for plaintiff-appellant.

John L. Oliver, Jr., Oliver, Oliver & Jones, P. C., Cape Girardeau, for defendant-respondent.

FLANIGAN, Chief Judge.

Plaintiff Marcella R. Mayfield brought this action against defendant Metropolitan Life Insurance Company for the "double indemnity benefit" contained in an insurance policy issued by defendant on the life of Loomis Mayfield. Plaintiff, the beneficiary named in the policy, is the widow of the insured. The cause was submitted to a jury which returned a verdict in favor of defendant. Plaintiff appeals.

Plaintiff's first "point relied on" reads: "The verdict and judgment were contrary to and against the weight of the evidence and contrary to the law under the evidence." This point preserves nothing for appellate review for it violates Rule 84.04(d) ¹ in failing to state "briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous." Similar statements have been held to be defective. See Wombles v. General Am. Life Ins. Co., 541 S.W.2d 45, 46 (Mo.App.1976); Stokes v. Kelly, 537 S.W.2d 562 (Mo.App.1976); Barber v. M. F. A. Milling Company, 536 S.W.2d 208, 211(13) (Mo.App.1976); Davis v. Schott, 508 S.W.2d 193 (Mo.App.1974); Bowers v. Spinaio, 421 S.W.2d 790, 792(3) (Mo.App.1967); State v. Koch, 272 S.W.2d 22, 25(2) (Mo.App.1954).

Whether a jury verdict is against the weight of the evidence is a question for the trial court alone. Wilcox v. Coons,362 Mo. 381, 241 S.W.2d 907, 917(25) (1951). "The statement that the verdict is against the greater weight of the credible evidence presents nothing for review because appellate courts do not weigh the evidence in a case tried before a jury." State ex rel. State Highway Commission v. Twin Lakes Golf Club, Inc., 470 S.W.2d 313, 315(3) (Mo.1971). See also Neavill v. Klemp, 427 S.W.2d 446, 449(13) (Mo.1968); Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306, 309(3) (Mo.1967).

Plaintiff advances three additional "points relied on," which will be considered together for the reason that each of them attacks the propriety of Instruction No. 3, given at the request of the defendant. One of these points also challenges the propriety of Instruction No. 4. Each of the challenged instructions is set forth below. ²

Plaintiff's criticisms of Instruction No. 3 include the charge that it is confusing and misleading. Plaintiff challenges Instruction No. 4 on the ground that it "should have been modified to place the burden of proof upon defendant to cause the jury to believe the propositions necessary to support the claims set out in Instruction No. 3."

On October 30, 1974, Loomis Mayfield was admitted to the Missouri Delta Community Hospital at Sikeston, Missouri. The diagnosis on admission was "acute diverticulitis." The initial treatment consisted of medication and bed rest. The attending physician was Fred Thornton, M.D. In the early morning hours of November 3, 1974, Dr. Thornton performed surgery consisting of an exploratory laparotomy and colostomy.

During the course of the surgery Loomis was anesthetized and an endotracheal tube was inserted. The tube, according to Dr. Thornton, "allows the anesthetist to breathe for the patient while he is paralyzed." Dr. Thornton testified that the use of the tube was "an essential part of the surgical treatment." Following the surgery Loomis, with the tube still intact, was transferred to the intensive care unit.

At 4:30 p. m. on November 3, 1974, while Loomis was in the intensive care unit, the tube became dislodged from his trachea. Several minutes passed before the tube could be "reinstated." During those minutes, the parties stipulated, there was "an inadequate supply of oxygen to the blood which led to the brain of Loomis." The parties further stipulated: "The hypoxic episode and resultant cerebral edema and cerebral necrosis were the direct and proximate result of a lack of oxygen when the endotracheal tube became dislodged."

Immediately following the tube dislodgement Loomis became comatose and remained in that condition until his death. On November 12, 1974, he was transferred to Baptist Memorial Hospital in Memphis, Tennessee, where he remained until his death on January 6, 1975. An autopsy was performed by Marvin P. Meadors, M.D., a pathologist.

The only oral evidence was introduced by plaintiff and it consisted of the testimony of Pamela Allred, who was the "medicine nurse" in the intensive care unit, and the testimony of Dr. Thornton. Mrs. Allred described the tube dislodgement incident. It was her testimony that the tube was out of place for approximately 15 minutes. She said she did not know "how the tube came out no one knows."

Dr. Thornton testified that the tube was inserted at the start of the surgery and was left in place when Loomis was taken to the intensive care unit. After Loomis was placed in that unit, Dr. Thornton "saw him frequently during the course of the day and he seemed to be doing well, making a rather standard recovery." At 4:45 p. m., minutes after the dislodgement had occurred, Dr. Thornton was notified of the incident and "got there as quickly as I could and reinserted the tube." On the doctor's arrival Loomis's "color was black, he was markedly cyanotic and his heartbeat was 14 per minute the normal being about 80." After the tube was reinserted Loomis was breathing but he was unconscious.

Dr. Thornton testified that the dislodgement of the tube "was not a part of my prescribed treatment." Dr. Thornton interpreted the autopsy report to mean "that the final cause, the thing that really killed Loomis, was the pseudomonas septicemia, and he had gotten this because he was unprotected with his necrosis of the brain or death of the brain."

Dr. Thornton also testified that in his opinion Loomis died "as a result of his cerebral cortical necrosis and complications that resulted therefrom the proximate cause of the cerebral cortical necrosis was the hypoxic episode that occurred when the tube was dislodged." The witness defined the term "hypoxic episode" as "the length of time he went without oxygen."

Dr. Thornton also testified, in essence, that in his opinion Loomis would have survived if the tube had not dislodged.

The material provisions of the insurance policy read:

"DOUBLE INDEMNITY BENEFIT

The Company will pay to the Beneficiary, subject to the provisions of this policy, an additional sum equal to $5,000, upon receipt of due proof that the death of the Insured occurred, while this benefit is in effect, as the result, directly and independently of all other causes, of bodily injury caused solely by external, violent, and accidental means.

Risks Not Covered Such additional amount will not be payable if the Insured's death:

(b) is caused or contributed to, directly or indirectly, by disease or bodily or mental infirmity, even though in such case bodily injury caused solely by external, violent, and accidental means is the proximate cause of death;

(c) is caused or contributed to, directly or indirectly, by infection of any nature, except septic infection incurred through an external visible wound sustained through external, violent, and accidental means;

(d) results, directly or indirectly, from medical or surgical treatment."

The parties assign different labels to Instruction No. 3. Plaintiff takes the position that Instruction No. 3 is an affirmative defense instruction based, at least in part, on a policy exclusion. Plaintiff cites Gennari v. Prudential Insurance Co. of America, 335 S.W.2d 55 (Mo.1960). In that case an action was brought on an insurance policy which provided for a double indemnity benefit payable for death by accidental means. The defendant pleaded that the insured's death resulted from disease. The policy contained a clause to the effect that the double indemnity benefit was not payable if the death resulted "directly or indirectly from bodily or mental infirmity or disease in any form." The supreme court said, at 61, that an allegation by the defendant that the death resulted from disease "is not the allegation of an affirmative defense and the burden thereon does not rest upon the defendant." The court also said that the "clause in the policy relative to death from bodily or mental infirmities or disease Is not an exception to the general liability clause governing double indemnity and Is, as the St. Louis Court of Appeals viewed it, essentially A redundant statement." (Emphasis added.)

Plaintiff states that, under Gennari, the "disease" ground in Instruction No. 3 is not an exclusion and that possibly the same is true with respect to the "infection" ground contained in that instruction. Plaintiff argues, however, that the "medical or surgical treatment" ground of Instruction No. 3 "is a true exception to the general liability clause" and, as such, is an affirmative defense.

Plaintiff then argues that Instruction No. 4 is erroneous because it violated the Notes on Use under MAI 3.01 in that it failed to inform the jury that the burden was on the defendant with respect to the matters submitted in Instruction No. 3. Plaintiff relies on Arnel v. Roettgen, 530 S.W.2d 20 (Mo.App.1975) where the court held, in a personal injury action, that the burden of proof instruction was erroneous in omitting to tell the jury that the burden was on the defendant with respect to the affirmative defense of contributory negligence and rejected the defendant's contention that the plaintiff invited the error by preparing and submitting the erroneous burden of proof...