Merkel v. Railway Mail Ass'n.

• Decision Date: 03 November 1920
• Docket Number: No. 15757.,15757.
• Citation: 226 S.W. 299,205 Mo. App. 484
• Parties: MERKEL v. RAILWAY MAIL ASS'N.
• Court: Missouri Court of Appeals

226 S.W. 299

205 Mo. App. 484

MERKEL v. RAILWAY MAIL ASS'N.

No. 15757.

St. Louis Court of Appeals. Missouri.

November 3, 1920.

Rehearing Denied November 18, 1920.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Azzie Merkel against the Railway Mail Association. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. P. Wilson and Brownrigg, Mason & Altman, all of St. Louis, for appellant.

Edward W. Foristel and James J. O'Donohoe, both of St. Louis, for respondent."

BECKER, J.

This is an action brought by plaintiff against defendant in the circuit court of the city of St. Louis to recover under the terms of an insurance policy issued to her husband, Henry J. Merkel.

The trial resulted in a judgment for the plaintiff, for a total sum of $4,938; $800 of this amount being for damages and attorney's fees.

It appears that the plaintiff, Azzie Merkel, was the widow of the deceased, Henry J. Merkel, who, preceding his death, was a railway mail clerk in the service of the government; that on June 15, 1916, he was in perfect health and left the city on that date about 3 o'clock, in the course of his employment; that he traveled between St. Louis and Nashville; that when he returned on the 17th of June following he was complaining of his stomach. His wife testified that she made an examination and found his stomach was black and blue with bruises all across the front; that he went to work again on the 18th; that he was due back on the 20th; but came back on the 19th; that when he came home he was screaming with pain, and that she called Dr. Wolfert and Dr. Hertel; that he was taken to the hospital, where he died on the 21st; that the deceased was 29 years old and weighed about 100 pounds, and was in good health prior to his last illness.

Dr. Hertel testified that he had known the deceased all his life; that prior to June, 1916, his health was perfect; that he was called to see him about the 20th of June, 1916, and that he found him suffering with peritonitis; that his abdomen was swollen, his pulse about 120, and his skin moist and clammy; that he made an examination of his stomach and sent him to the hospital; that when he opened the abdomen it contained a large quantity of serum and pus, bowels over whole region of abdomen swollen, cyanotic, and in places showing beginning degeneration. He stated this condition could be caused by a strangulated bowel, a blood clot, or interdisposition, but that he found none of these conditions present, and when asked the question, "Could that condition that you found there be caused by a blow on the stomach?" he answered, "That is the most frequent cause of it;" that this condition was due to injury; that the mark upon the abdomen was about one-half inch wide and three or four inches long, and was caused from external violence. Upon cross-examination he stated that he made out the death certificate, omitting to say anything about accidental causes; that he was advised to do so by the coroner, Dr. Padberg, in order to eliminate complications; and that he had several cases where they had put the diagnosis in this way, or as he saw fit, on account of the relations of the family, standing, etc.

Dr. Wolfert testified, in answer to a hypothetical question, that Merkel died from general peritonitis, or blood poisoning of the whole stomach, and that this could not have been caused by anything but a blow from the outside. The testimony would tend to show further that this condition of the stomach did not originate in the region of the appendix, but had spread to that portion of the abdomen. The plaintiff offered further testimony as to a reasonable amount for attorney's fees in bringing suit, etc.

Defendant's answer was a general denial, and at the close of plaintiff's evidence defendant offered a demurrer which was by the court overruled. Defendant offered no testimony.

I. Appellant here seriously contends that from the record before us it clearly appears that the jury could not arrive at a verdict favorable to plaintiff except in violation of the rule that forbids the predicating of one inference upon another inference. We have gone over all of the authorities cited in support of this contention; and have most carefully considered the able argument set up in support of the point here sought to be made, and, after mature consideration thereof, have come to the conclusion that the point is without merit.

The record discloses that plaintiff herself testified that the insured was 29 years old, 5 feet 10 inches in height, and weighed about 190 pounds, and on the 15th day of June, 1916, was in perfect health. In this statement she is corroborated by another witness, a physician who had known the insured nearly all of his life. Plaintiff further testified that she next saw the insured on the 17th day of June, when the insured, who was employed in the capacity of a railroad mail clerk, returned from his run to Nashville, Tenn.; that he then complained of his stomach, and upon examination plaintiff found "his stomach was black and blue; bruises all across the front of his stomach, * * * from his stomach on down into his bowels." (Italics ours.) This testimony in itself is evidence of external violence. And on this point the jury had in addition the testimony of an expert witness to the effect that the black and blue marks could not have been caused by anything except external violence.

In light of this testimony, we are of the opinion, and so hold, that the jury had before them testimony as to facts which, if they believed, were evidences in themselves that the deceased suffered external violence, which being true, it follows that in order for the jury to arrive at the conclusion that the deceased suffered external violence it was not necessary for them to predicate such finding upon an inference.

It was then within the province of the jury, it having been shown by competent testimony that the death of the deceased was due to general peritonitis, and further testimony that general peritonitis may result from external violence, to draw the inference that the general peritonitis was in point of fact caused by external violence. Up to this point there is then no violation of the rule that you cannot predicate a verdict upon an inference drawn from another inference; that is, piling inference upon inference.

Now, though the jury could infer that the deceased came to his death from general peritonitis caused by an external blow, there would still be one essential link missing to complete the chain of proof necessary to predicate a verdict favorable to plaintiff, namely, that the...