Mullins v. The Masonic Protective Association

• Decision Date: 13 June 1914
• Citation: 168 S.W. 843,181 Mo.App. 394
• Parties: ALICE MULLINS, Respondent, v. THE MASONIC PROTECTIVE ASSOCIATION, Appellant
• Court: Kansas Court of Appeals

168 S.W. 843

181 Mo.App. 394

ALICE MULLINS, Respondent, v. THE MASONIC PROTECTIVE ASSOCIATION, Appellant

Court of Appeals of Missouri, Kansas City

June 13, 1914

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

REVERSED.

Judgment reversed.

Edward E. Naber and R. J. Smith for appellant.

Fyke & Snider for respondent.

OPINION

ELLISON, P. J.

Plaintiff's action is based on accident insurance policy issued to her deceased husband. She recovered judgment in the trial court for $ 500.

The policy contained these provisions:

"A. The association will pay five dollars for the first entire week and ten dollars for each succeeding entire week of total disability resulting immediately, continuously and solely from accidental injuries due to violent, external and involuntary causes, and leaving visible marks of wounds fracture or dislocation upon the body of the insured.

"B. If such accidental injuries shall not totally disable the insured an entire week, but shall immediately and continuously disable him from performing a majority of the duties of his occupation, the association will pay, during the continuance of such partial disability, one-half the amount provided in clause A for total disability.

"C. If injuries and disability described in clause A alone result in any of the following total losses within ninety days of the accident, the Association, in lieu of any other indemnity, and provided notice of such injury is mailed to the home office, within twenty days from date of accident, will pay for one, and only one, of the following total losses: For loss of life five hundred dollars (The principal sum of this policy). . . ."

The accident happened on the 6th of August, 1912 by deceased trying to get on a moving car. He continued at his work several days. Then something appeared to affect him seriously; just what it was was a matter of uncertainty. Finally, on the 16th of August he was taken to a hospital and operated on for appendicitis. He died on the 21st of that month. On the 20th of August plaintiff notified defendant that her husband was sick with appendicitis. Then, on the 3rd of September, 1912, plaintiff sent the following notice which was received two days later: "To the Masonic Protective Association, Worcester, Mass. I am the beneficiary named in your policy No. 55168, issued by you September 26, 1911 for $ 500 to my husband, Clarence Mullins, of Kansas City, Missouri. On August 6th, Clarence Mullins sustained injuries resulting from a fall upon or across a hard object, hurting himself in the region of the abdomen, and from the time of his injury to the time of his death suffered therefrom. About August 16th, he was taken to St. Marys Hospital, in this city, and an operation performed; said to be for appendicitis, and he died August 21, 1912. This is to be considered my proof of claim, and the amount due me from you under the policy is $ 500. Kansas City, Missouri, September 3, 1912. Alice Mullins."

Defendant's first and principal objection to the judgment is that the court erred in not sustaining its demurrer to the evidence. The ground upon which this is based is the claim that the evidence in plaintiff's behalf shows that the injuries received by deceased were not such as to cause a "total disability resulting immediately, continuously and solely from accidental injuries;" and that such injuries were not "alone the sole and only direct cause of the death of the insured."

The testimony of one of plaintiff's chief witnesses and the one who saw the accident was that deceased swung against the car, striking his side, which made him "double up for a moment and look kind of pale; " but he went on with his work for the balance of the day. This witness stated that deceased continued to work on other days and that he worked with him; but he could not be definite as to the length of time. Plaintiff's own testimony as it appeared in her deposition was that deceased was injured Tuesday afternoon and that he said nothing to her about it until Thursday; that he continued his work on the...