Merrick v. Travelers' Ins. Co.

• Decision Date: 03 July 1916
• Docket Number: No. 12019.,12019.
• Citation: 189 S.W. 392
• Parties: MERRICK v. TRAVELERS' INS. CO.
• Court: Missouri Court of Appeals

189 S.W. 392

MERRICK v. TRAVELERS' INS. CO.

No. 12019.

Kansas City Court of Appeals. Missouri.

July 3, 1916.

Rehearing Denied November 6, 1916.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by Ollie B. Merrick against the Travelers' Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Vinton Pike, of St. Joseph, and O. C. Mosman, of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

JOHNSON, J.

This is an action on a policy of accident insurance issued by defendant to William C. Merrick, a practicing dentist in Kansas City, who died April 24, 1912, while the policy was in force. A rider attached to the policy provided that:

"Subject otherwise to all of its conditions and provisions this policy covers septic poisoning, the result of external inoculation through accidental contact with septic matter."

Plaintiff, who is the widow of the insured and the beneficiary named in the policy, contends that the death of her husband was the result of external inoculation through accidental contact with septic matter, and therefore that she is entitled to the indemity provided in the policy. Defendant denies that such was the cause of the death of the insured, and insists that the evidence of plaintiff fails completely to sustain her action, and leaves the cause of the death in the field of conjecture and speculation. The trial court thought otherwise, denied defendant's request for a directed verdict, and submitted issues of fact to the jury. Verdict and judgment were for plaintiff, and defendant appealed.

The facts and circumstances of the last sickness and death of the insured, disclosed by the evidence of plaintiff, were as follows: Merrick apparently was in good health, but had been afflicted for two weeks or more with a slight cold and its attendant inflammation of the nasal mucous membrane, but the cold and inflammation had almost disappeared at the time of his alleged infection. He was working in his office on the teeth of a patient who was suffering from a virulent and advanced attack of pyorrhea, a disease which causes the formation and oozing of pus at the base of the affected teeth. The patient suddenly coughed with explosive violence, ejecting a spray of saliva into the doctor's face. The assistant to the doctor testified that:

He was fitting a bridge in the patient's mouth and his face "was down so low he could not get out of the way as he generally did. * * * Dr. Merrick had his fingers in Hall's mouth at the time of these coughing spells. Hall was reclining in the chair and the doctor was bending over him. He was not bending over him. He was down in his face looking into his mouth at these front teeth, and that had occurred on other dates in the same way, but at other times the doctor was not holding anything and could get away."

The next day the doctor and Mrs. Merrick attended a matinee, and on leaving the theater he complained of a headache. After returning home, the pain which was in the forehead just above the nose seemed to increase and extended around to the ear. He slept little that night. The next day he dressed, but reclined all day and suffered from the pain, which did not abate. The next morning, which was Monday, he went to the office to keep an appointment, but returned home at 1 o'clock in a taxicab and was suffering intensely from the pain in his forehead and car. He went to bed and had the family physician called, who made an examination. The physician testified:

"I examined him all over and his nose the best I could without an artificial light. The mucous membrane was red, swollen, and inflamed, hot you might say, no watery fluid being discharged from his nose. No redness of the eyes, and his throat was not red, if I remember correctly. None of the symptoms of a cold."

A specialist, Dr. Hamilton, was called in to treat the nose, and other doctors were called in consultation. In time the pain decreased, but the patient gradually grew weaker and developed symptoms of mental aberration. Constantly but gradually he grew worse and died April 24th, about three months...