Merkel v. Railway Mail Association

• Decision Date: 08 May 1923
• Citation: 254 S.W. 368,212 Mo.App. 632
• Parties: AZZIE MERKEL, Respondent, v. RAILWAY MAIL ASSOCIATION, a Corporation, Appellant
• Court: Missouri Court of Appeals

254 S.W. 368

212 Mo.App. 632

AZZIE MERKEL, Respondent, v. RAILWAY MAIL ASSOCIATION, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

May 8, 1923

Appeal from Circuit Court of the City of St. Louis.--Hon. Wilson A Taylor, Judge.

AFFIRMED.

Judgment affirmed.

Browrigg Mason & Altman and E. P. Wilson, for appellant.

(1) Under the contract as proven by the plaintiff, the defendant was liable in the event of death of the insured due to external, violent and accidental means and not arising out of appendicitis, whether caused by trauma or otherwise, and the burden was upon the plaintiff to prove such a death. (2) Where, from plaintiff's evidence, it appears that death may have resulted from any one of two or more causes, for only one of which the defendant is liable, plaintiff fails to make out a case. Wright v. Commercial Travelers Ass'n, 18 Mo.App. 464; Dunn v. Life & Accident Ins. Co., 197 Mo.App. 470; Atherton v. Railway Mail Ass'n, 221 S.W. 756; Epperson v. Postal Tel. & Cable Co., 155 Mo. 382; Fuch v. City of St Louis, 167 Mo. 635; Cluett v. Union Electric L. & P. Co., 220 S.W. 867; Freeman v. Loyal etc., Ins. Co., 195 S.W. 497; Merritt v. Preferred etc., Ass'n, 98 Mich. 338. (3) The burden is always on the plaintiff claiming under an accident policy to show that death resulted from a cause within the terms of the policy, and that burden is not sustained by showing facts which raise as strong or stronger probably that the death was due to some cause without the terms of the policy. Wright v. Commercial Travelers Ass'n, 188 Mo.App. 464; Dunn v. Life & Accident Ins. Co., 197 Mo.App. 470; Atherton v. Railway Mail Ass'n, 221 S.W. 756; Freeman v. Loyal etc., Ins. Co., 195 S.W. 497; Merrit v. Preferred, etc., Ass'n, 98 Mich. 338. (4) Plaintiff's evidence in this case showed, at most, a bare possibility of a causal connection between some external violence, indicated by marks on the abdomen of the deceased, and the abdominal peritonitis which might, independently of traumatic appendicitis, have caused his death. The evidence of plaintiff indicated that a much more reasonable probability of the cause of death was either acute appendicitis due to trauma or acute appendicitis arising from natural causes independently of trauma, and as defendant was not liable for death due to either of the two latter causes mentioned, plaintiff failed to make out her case. (5) In order to reach a conclusion that the death of the insured resulted from a cause within the terms of the policy, it was necessary for the jury to infer external violence from the very vague, uncertain and contradictory testimony as to the marks or appearances on the stomach or abdomen of the deceased, from that to infer that such external violence was accidental, and from that to further infer that the abdominal peritonitis which existed within was caused by such external violence rather than by appendicitis due to trauma or otherwise, and that notwithstanding the fact that the man had acute appendicitis accompanied by a perforated appendix. A conclusion cannot be thus arrived at by piling inference upon inference and presumption upon presumption. Phillips v. Ins. Co., 231 S.W. 947; Wright v. Commercial Travelers Ass'n., 188 Mo.App. 464; Atherton v. Railway Mail Ass'n., 221 S.W. 752; Keifer v. Ins. Co., 201 Pa. 448; Hamilton v. Kansas City Southern Ry. Co., 250 Mo. 714; Swearengen v. Railroad, 221 Mo. 644; Yarnell v. K. C., etc., Ry. Co., 113 Mo. 570; Glick v. Kansas City, etc., Co., 57 Mo.App. 97. (6) The presumption against suicide does not carry with it the further presumption that death was accidental and under the rule declared by the Supreme Court of this State it is only where the circumstances show that the death must have been due to violent causes and was either accidental or suicidal, that the presumption of accident applies. Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45; Lessig v. Ins. Co., 169 Mo. 280. (7) It is only in the absence of evidence as to the cause of death that a presumption of accidental death will in any case be operative. Evidence of the plaintiff's own witnesses showed that acute appendicitis, which might be due either to natural causes or to trauma, existed as a present, probable, and altogether efficient cause of death. There was, therefore, no room for presumption in the case. Brunswick v. Standard Accident Ins. Co., 213 S.W. 50; Mockowik v. Railway, 196 Mo. 571. (8) The statement contained the proof of death submitted to the company that the cause of the death of the assured was acute appendicitis and ganger of the bowels was binding upon the plaintiff unless explained or overcome by other evidence. There was no evidence in this case which tended to explain or overcome that admission. Stephens v. Metropolitan Life Ins. Co., 176 S.W. 253; Castens v. Supreme Lodge Knights & Ladies of Honor, 175 S.W. 264; Almond v. Modern Woodmen of America, 133 Mo.App. 382. (9) The instruction offered on behalf of the plaintiff, was misleading, as under its terms the jury were permitted to find a verdict for the plaintiff, even though the death of the insured might have been caused by appendicitis. (10) The court erred in permitting counsel for the plaintiff, in his argument to the jury, to make statements as of fact which were not based upon the evidence or supported by the evidence, and which were highly prejudicial to the defendant, and in overruling defendant's objections to said statements. Jackman v. St. L. & H. Ry. Co., 206 S.W. 246; O'Hara v. Lamb Const. Co., 197 S.W. 163. (11) Counsel warped and prejudiced the minds of the jury by improperly stating that it was necessary for one Young, who was thrown about in a mail car and injured, to sue the defendant association upon its policy.

Edward W. Foristel, and James J. O'Donohoe, for respondent.

(1) The decision of this court on the first appeal is the law of this case. The opinion is correct, clear, able and exhaustive. Benton v. St. Louis, 248 Mo. 98. The court on first appeal reviewed the evidence and decided there was sufficient evidence to send the case to the jury on subsequent appeal with substantially the same evidence (here it is more cogent); that question is res adjudicata. State ex rel v. Broaddus, 238 Mo. 189; Costigan v. Michael Trans. Co., 38 Mo.App. 269; Campbell v. Hayden, 181 Mo.App. 681; Bank v. Stewart, 160 Mo.App. 643; Michaels v. Harvey, 195 S.W. 519; Remick v. Ins. Co., 195 S.W. 1049; Barrie v. Transit Co., 119 Mo.App. 38; Kerr v. Cusenbary, 69 Mo.App. 221; Cherry v. Railway, 61 Mo.App. 303. And "a determination by the appellate court on a former appeal that the evidence was sufficient to take the case to the jury on all the issues raised becomes the law of the case, whether right or wrong." White v. Int. Text Book Co., 156 Iowa 210. Furthermore, the answer on first appeal was a general denial. It did not invoke the defense that insured died of appendicitis. And no new issues can be made nor new defenses asserted after the case comes down for retrial. The defense of death from appendictis was open to defendant within the legitimate scope of the pleadings. It was too late on retrial to invoke that defense. Bange v. Legion of Honor, 153 Mo.App. 167, 168; State ex rel. Bankers Life Co. v. Reynolds et al., 277 Mo. 14; Railway v. McCarthy, 96 U.S. 258; Railroad v. Higdon, 234 U.S. 592, and cases cited. (2) The evidence showed that there was a black and blue mark on the insured's abdomen and that such mark was due to external violence, and the same produced peritonitis, which caused death. The matters do not rest upon inference or presumption, but are fully established by the evidence. And plaintiff having shown that death was caused by unexplained violent, external means, the presumption is that the injuries were accidental, and plaintiff's cause is established without direct proof upon that point. Merkel v. Railway Mail Association, 205 Mo.App. 484; O'Connor v. Columbian Nat. Life Ins. Co., 232 S.W. 218; Goodes v. Order of U. C. T., 174 Mo.App. 330; Hooper v. Standard L. & Acc. Ins. Co., 166 Mo.App. 209; Riska v. Railroad, 180 Mo. 168; Meadows v. Life Ins. Co., 129 Mo. 76; Cronkhite v. Travelers Ins. Co., 75 Wis. 116; Jenkins v. Pacific Mutual, 131 Cal. 121; Burnham v. Interstate Casualty Co., 117 Mich. 142; Van Eman v. Fidelity & Casualty Co., 201 P. 537; Caldwell v. Iowa, S. T. M. A., 156 Iowa 327; Peck v. Association, 5 N.Y.S. 215; Travelers Acc. Ins. Co. v. Hunter, 70 S.W. 798; Preferred Acc. Ins. Co. v. Fielding, Admr., 35 Colo. 19. (3) While the insured died from peritonitis, yet the bodily injury which produced the same is the proximate cause of death within the meaning of the policy. Dezell v. Fidelity & Casualty Co., 176 Mo. 253; Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Johnson v. Continental Casualty Co., 122 Mo.App. 369; Columbia P. S. Co. v. Fidelity & Casualty Co, 104 Mo.App. 157; Summers v. Fidelity Mut. Aid Ass'n, 84 Mo.App. 605; Trav. Ins. Co. v. Murray, 16 Colo. 296; Freeman v. Mercantile Acc. Ass'n, 156 Mass. 351; Travelers Ins. Co. v. Melick, 65 F. 178; Isitt v. Passengers' Assur. Co., 22 Q. B. Div. 504; Peck v. Equitable Accident Ass'n, 52 Hun. (N. Y.) 255; Continental Casualty Co., v. Matthis, 150 Ky. 477; Schumacher v. Great E. Cas. Co., 197 N.Y. 58; U. S. H. & Acc. Ins. Co. v. Harvey, 129 Ill.App. 104; Martin v. Mfg. etc. Co., 151 N.Y. 94; Fidelity & Casualty Co. v. Morrison, 120 Ill.App. 360; Delaney v. Modern Acc. Club, 121 Iowa 528. (4) The question as to whether the verdict is against the weight of the evidence is peculiarly a question for the trial judge who heard the testimony and saw the witnesses. In this State, appellate courts always defer to the judgment of the trial court in passing upon the weight of the evidence. ...