O'Meara v. New York Life Ins. Co.
| Decision Date | 01 March 1943 |
| Citation | 169 S.W.2d 116,237 Mo.App. 409 |
| Parties | Lina Jacobs O'Meara, Appellant, v. New York Life Insurance Company, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Albert A. Ridge, Judge.
Affirmed.
Lathrop Crane, Reynolds, Sawyer & Mersereau, Richard S. Righter and Rudolph Heitz for respondent.
(1) The court did not err in rejecting the testimony of the plaintiff regarding statements made by her husband after he had fallen. (a) The statements made by the plaintiff's husband were not part of the res gestae. Goucher v. Woodmen Accident Co. of Lincoln (Neb.), 231 Mo.App. 573, 104 S.W.2d 289; Cramer v. Parker (Mo. App.), 100 S.W.2d 640; Russell v. Met. Life Ins. Co., 149 S.W.2d 432; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; Hatfield v. Southwestern Grocer Co. (Mo. App.), 104 S.W.2d 717. (b) Without regard to whether the alleged statements of O'Meara were part of the res gestae, their exclusion by the court was not prejudicial error. Dee v. Nachbar, 207 Mo. 680, 106 S.W. 35; Osborne v. Quincy, O. & K. Ry. Co., 144 Mo.App. 119 129 S.W. 226; Wiendaz v. May Department Stores Co. (Mo App.), 156 S.W.2d 44; Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777; Mundy v. Mo. Power & Light Co., 101 S.W.2d 740, 742. (c) The judgment should not be reversed for the exclusion of this hearsay testimony even if it were part of the res gestae, because appellate courts do not reverse judgments for errors in the admission or exclusion of testimony in equity cases, but base their conclusions upon the entire record. Devoto v. Devoto, 10 S.W.2d 662; Nordquist v. Nordquist, 14 S.W.2d 583; Breit v. Bowland et al., 127 S.W.2d 71, 76. (2) Appellant's assignment of error No. 2, and the corresponding Point 2 in her brief is not a sufficient assignment of error to entitle her to have the question reviewed. Breit v. Bowland (Mo. App.), 127 S.W.2d 71, 77; Magee v. Hayden (Mo. App.), 111 S.W.2d 239; Miller v. Mutual Benefit Health & Accident Ass'n (Mo. App.), 80 S.W.2d 201; City of Huntsville ex rel. Johnson v. Hamilton Estate (Mo. App.), 33 S.W.2d 185; Bennett v. Brotherhood of Locomotive Firemen & Enginemen (Mo. App.), 82 S.W.2d 601; Boyer v. Mo. Pac. R. Co. (Mo.), 293 S.W. 386. (3) The judgment below should be affirmed because it is supported by substantial evidence. (a) Whether the action is at law or in equity, the practical result is the same and the judgment being supported by substantial evidence should be affirmed. Yellow Mfg. Accept. Corp. v. Am. Taxicabs, 344 Mo. 1200, 130 S.W.2d 601, 608; Stibal v. Nation (Mo.), 98 S.W.2d 724, 729; Langwell v. Wellbanks (Mo.), 106 S.W.2d 417, 418; Laitner Plumbing & Heating Co. v. Platt Land Co. (Mo. App.), 67 S.W.2d 524, 526; Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381, 384-5. (b) The evidence in support of the judgment below is substantial. Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907, 921; Pope v. Business Men's Assur. Co. of America, 235 Mo.App. 263, 131 S.W.2d 887; Provident Life & Accident Ins. Co. v. Wallace, 23 Tenn.App. 697, 137 S.W.2d 888. (c) The judgment of the trial court should also be sustained because there is substantial evidence that the insured's death resulted from an independent, intervening cause, and because that intervening cause comes within the provision of policy excluding liability for death due to disease. Propst v. Capital Mutual Association, 233 Mo.App. 612, 124 S.W.2d 515. (d) Two additional intervening causes are also present which break the alleged chain of causation. (e) Plaintiff's cases under plaintiff's Point (2) distinguished. (4) Plaintiff's claim that the trial court erred in failing to find and declare the rights of the parties is without merit. Smith, Judge, v. Pettis County, 136 S.W.2d 282; Frazier v. City of Chattanooga, 156 Tenn. 346, 1 S.W.2d 786; Kingston v. St. Louis Union Trust Co. (Mo.), 154 S.W.2d 39.
Frank R. Daley, Philip L. Levi and David R. Derge for appellant.
(1) The court erred in rejecting the testimony of the plaintiff regarding statements made by her husband immediately after he had fallen since such statements were a part of the res gestae. Noland v. Morris & Co., 248 S.W. 627; Brinkley v. United Biscuit Co. of America, 164 S.W.2d 325; Bennette v. Hader, 87 S.W.2d 413; Coffey v. S. S. Kresge Co., 102 S.W.2d 161; Scism v. Alexander, 93 S.W.2d 36; Greenlee v. K. C. Cas. Co., 182 S.W. 138; 3 Wigmore on Evidence, secs. 1747, 1750; 2 Corpus Juris Secundum 51. (2) The court erred in entering its judgment in favor of the defendant and against the plaintiff under the law and the evidence. 108 A. L. R. 21; 29 Am. Jur. 757; 1 C. J. 454; Couch on Insurance, sec. 1251; State ex rel. v. Shain, 127 S.W.2d 675; Cameron v. Mass. Protective Assn., 275 S.W. 988; Cary v. Preferred Accident Ins. Co., 106 N.W. 1055; Fetter v. Fid. & Cas. Co., 73 S.W. 592; Greenlee v. K. C. Cas. Co., supra; Bellows v. Traveler's Ins. Co., 203 S.W. 978; Johnson v. Continental Cas. Co., 99 S.W. 473; Anderson v. Mut. Benefit Ins. Co., 231 S.W. 75; Schepman v. Mut. Benefit Ins. Co., 104 S.W.2d 1077; Rieger v. Mut. Life, New York, 110 S.W.2d 878; Propst v. Capital Mutual Assn., 124 S.W.2d 515; Hughes v. Maryland Cas. Co., 76 S.W.2d 1101; Collins v. Cas. Co., 112 N.E. 634; Ballam v. Met. Life Ins. Co., 3 N.E.2d 1012; Westmoreland v. Preferred Accident Ins. Co., 76 F. 244; Sentinel Life Ins. Co. v. Blackmer, 77 F.2d 347; Jones v. Commonwealth Cas. Co., 100 A. 450; Freeman v. Mercantile Mutual Accident Assn., 30 N.E. 1013. (3) The court erred in failing to find and declare the rights of the parties. Smith, Judge v. Pettis Co., 136 S.W.2d 282; Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39.
This is an action on a double indemnity provision of a life insurance policy, issued by the defendant on the life of Thomas L. O'Meara, in favor of the plaintiff, his wife, as beneficiary. The cause was tried as a suit in equity, resulting in a judgment "that plaintiff is not entitled to recover." Plaintiff has appealed.
The face of the policy was for $ 2500. This amount was paid to the plaintiff by the defendant upon the death of insured, which occurred on the 21st day of May, 1939. Defendant refused to pay under the double indemnity provision, which provided, that defendant would pay
Plaintiff's evidence tends to show that on and before March 29, 1939, insured was a large robust man, 39 years of age, in good health, except that on said date he was suffering from a chronic cough due to a throat irritation; that he was steadily employed and would engage in such recreational activities as bowling, tennis playing and hunting. Plaintiff's evidence tends to show that the cough was slight, being similar to one caused by excessive smoking. Defendant's evidence is that it was a more serious one.
On the morning of March 29, 1939, plaintiff was unable to start her automobile by reason of the fact that the "battery was dead," and insured attempted to move the car by pushing upon the front of the radiator. The automobile was standing on the driveway adjacent to the residence of the plaintiff and the insured in Kansas City. The ground was covered with sleet and it was slippery. While insured was pushing upon the car he slipped and fell to the pavement of the driveway. Plaintiff, seated in the car, alighted therefrom, and went to where insured was lying on his right side in a doubled up position holding his right side. He was groaning and appeared to be in great pain. Plaintiff assisted him into the house. Insured held his right side, broke out in perspiration and continued moaning while being so assisted. The court refused plaintiff's offer of proof to the effect that insured stated a few seconds after the accident, and at about the time that he entered the house; "That darn fall sure hurt me." This action by the court is assigned, by the plaintiff, as error. Insured remained at his home for about an hour in great pain. He then went to his work, but returned in a few hours and remained at home the rest of the day.
He visited a physician the next morning, who advised him that he was suffering from an inguinal hernia on the right side. Insured began to wear a truss. The truss was uncomfortable but insured did not complain of any particular sharp pain after the first day or two except when he got in and out of his automobile and when he coughed. The coughing was more pronounced in the mornings.
Insured continued at his work and, on April 8, 1939, consulted Dr. John O. Skinner who, after an examination, advised him that he was suffering from a bilateral hernia. On April 12, 1939, by an arrangement with Dr. Skinner, he entered a hospital in Kansas City and the doctor operated on him for hernia the next day. Insured died at the hospital on May 21, 1939. The cause of death was due to "bronchial pneumonia," but the parties differ as to the cause of the disease.
It was plaintiff's contention at the trial that insured suffered the hernia from the fall and, therefore, as the result of an accident, and that his death was occasioned by the operation, in that, a lung abscess resulted from an embolus breaking off at the site of the operation and entering the blood stream and lodging in the lung tissue.
The facts further show that on April 8, 1939, insured's white blood...
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