Rieger v. Mut. Ins. Co. of N.Y.

• Decision Date: 07 December 1937
• Docket Number: No. 24347.,24347.
• Citation: 110 S.W.2d 878
• Parties: MAMIE F. RIEGER, RESPONDENT, v. MUTUAL INS. COMPANY OF NEW YORK, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

110 S.W.2d 878

MAMIE F. RIEGER, RESPONDENT, v. MUTUAL INS. COMPANY OF NEW YORK, A CORPORATION, APPELLANT.

No. 24347.

St. Louis Court of Appeals. Missouri.

Opinion filed December 7, 1937.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Eugene J. Sartorius, Judge.

REVERSED AND REMANDED (with instructions).

Emmett Golden and Rene J. Lusser for respondent.

(1) Sullivan v. Gideon, 308 Mo. App. 48; Tash v. St. Louis-San Francisco Ry. Co. (Mo.), 76 S.W. (2d) 690, l.c. 695; Knight v. Wabash Ry. Co. (Mo.), 85 S.W. (2d) 392; Murrell v. Kansas City, etc., Ry. Co. (Mo.), 213 S.W. 964. (2) Lunsford v. St. John's Hospital et al. (Mo. App.), 107 S.W. (2d) 163, l.c. 166; Klohr v. Edwards (Mo. App.), 94 S.W. (2d) 99, l.c. 105; Mueller v. St. Louis Public Service Company (Mo. App.), 44 S.W. (2d) 875; McPherson v. Premier Service Company (Mo. App.), 38 S.W. (2d) 277; Kimme v. Terminal Railroad Association, 66 S.W. (2d) 561, l.c. 565; Edmondson v. Hotels Statler Co., 267 S.W. 612; Crowley v. American Car & Foundry Co., 279 S.W. 212, l.c. 214; Schulz v. St. Louis-San Francisco Ry. Co., 4 S.W. (2d) 762, l.c. 767; Sharp v. Railroad Co., 213 Mo. 517; MacDonald v. Railroad Co., 219 Mo. 468, l.c. 481. (3) Plaintiff's evidence did not show that insured's death was "due either to an accidental injury or a preexisting disease;" but on the contrary, it showed that insured's death was the result of the traumatic injury, and therefore plaintiff's case is not predicated upon mere guess or speculation. Edmondson v. Hotels Statler Co., 267 S.W. 612; Crowley v. American Car & Foundry Co., 279 S.W. 212, l.c. 214; Schulz v. St. Louis-San Francisco Ry. Co., 4 S.W. (2d) 762, l.c. 767; Sharp v. Railway Co., 213 Mo. 517; MacDonald v. Railroad Co., 219 Mo. 468, l.c. 481. (4) Plaintiff, by proving her pleaded case as set out under points 1, 2, and 3, well carried the burden of proof, and by the proof that insured died as a result of the accident, she also disproved that death resulted from any disease. Layton v. Metropolitan Life Ins. Co., 89 S.W. (2d) 576, l.c. 579; Kahn v. Metropolitan Casualty Ins. Co. (Mo.), 240 S.W. 793, l.c. 798; Smith v. Washington Nat'l Ins. Co. (Mo. App.), 91 S.W. (2d) 169; Wheeler v. Fidelity & Casualty Co. (Mo.), 251 S.W. 924; Driskell v. Insurance Company, 117 Mo. App. 362, 363, 369; Fetter v. Fidelity & Casualty Co., 174 Mo. 256. (5) (a) Although defendant's evidence attempted to show that insured was suffering from a bodily disease, nevertheless, under the Missouri rule, plaintiff is entitled to recover under the policy, since there was sufficient evidence introduced to show that the insured died as a result of the injuries he received by virtue of his accidental fall. Fetter v. Fidelity & Casualty Co., 174 Mo. 257; Wheeler v. Fidelity & Casualty Co. (Mo.), 251 S.W. 924; Driskell v. Insurance Company, 117 Mo. App. 362, 369; Kahn v. Metropolitan Casualty Ins. Co. (Mo.), 240 S.W. 793. (b and c) From the evidence, and under the Missouri law, the jury could reasonably find that the accidental injury was the direct and proximate cause of insured's death, and that the alleged diseased condition of his body was a remote and not the direct or proximate cause of his death. Smith v. Washington Nat'l Life Ins. Co. (Mo. App.), 91 S.W. (2d) 169; Goodes v. Commercial Travelers, 174 Mo. App. 330; Fetter v. Fidelity & Casualty Co., 174 Mo. 257; Wheeler v. Fidelity & Casualty Co. (Mo.), 251 S.W. 924; Driskell v. Insurance Company, 117 Mo. App. 362, 369. (d) There was sufficient evidence before the jury for them to find that the accidental injury caused insured's death, even though defendant's evidence attempted to show the presence of a bodily disease. This was clearly a question for the jury. Smith v. Washington Nat'l Life Ins. Co., 91 S.W. (2d) 169; Fetter v. Fidelity & Casualty Co., 174 Mo. 257; Wheeler v. Fidelity & Casualty Co. (Mo.), 251 S.W. 924; Driskell v. Insurance Company, 117 Mo. App. 362, 369; Johnson v. Continental Casualty Co., 122 Mo. App. 369; Hooper v. Standard Life & Acc. Ins. Co., 166 Mo. App. 209. (6) Plaintiffs' Instruction No. 2 correctly states the law under the Missouri rule. The contention of defendant that insured was suffering from bodily disease at the time of the accidental injury did not preclude the jury from finding that the death was caused directly by the accidental injury. Fetter v. Fidelity & Casualty Co., 174 Mo. 257; Wheeler v. Fidelity & Casualty Co. (Mo.), 251 S.W. 924; Driskell v. Insurance Company, 117 Mo. App. 362, 369; Smith v. Washington Nat'l Insurance Co., 91 S.W. (2d) 169; Beckerleg v. Locomotive Engineers' Mutual Assn., 274 S.W. 922. (7) Under the evidence it was a question for the jury to determine whether the refusal to pay was vexatious. Reasonable minds could well differ on this question, and, therefore, it was not error for the trial court to submit the issue to the jury. White v. American Life & Acc. Ins. Co., 90 S.W. (2d) 118, 120; Streeter v. Washington Fidelity National Ins. Co., 68 S.W. (2d) 889; Rush v. Metropolitan Life Ins. Co., 63 S.W. (2d) 453.

Jones, Hocker, Gladney & Grand for appellant.

(1) The plaintiff does not prove a causal connection between a prior injury and a subsequent death by a mere showing of a possibility that the prior injury might, or could, have caused the subsequent death. Kimmie v. Terminal Railroad Ass'n, 334 Mo. 596; O'Leary v. Scullin Steel Co., 303 Mo. 363; Cox v. Missouri, Kansas & Texas Railroad Company, 335 Mo. 1226; Dorschow v. St. Louis Public Service Co. (Mo.), 95 S.W. (2d) 1173. (2) Where the evidence shows that insured's death may have been due either to an accidental injury or a pre-existing disease, the jury should not be permitted to guess or speculate that death was due to the accidental injury and not to the disease. Warner v. St. Louis, etc., Ry. Co., 178 Mo. 125; Adelsberger v. Sheehy, 332 Mo. 954; Atherton v. Railway Mail Assn. (Mo. App.), 221 S.W. 756; Copeland v. Chicago etc. Ry. Co., 293 Fed. 12 (C.C.A. 8); Ocean Accident & Guarantee Corp. v. Moore, 85 F. (2d) 369, 374 (C.C.A. 8). (3) As the accidental death benefit of the policy only insured against death resulting from an accidental injury independently of all other causes, and also expressly provided that it did not cover death due directly or indirectly to disease, the burden of proof was upon the plaintiff to show that a pre-existing disease was not a contributory cause of death. Phillips v. Travelers Ins. Co., 288 Mo. 175; Layton v. Metropolitan Life, 89 S.W. (2d) 576 (Mo. App.); Kellner v. Travelers Ins. Co., 181 Pac. 61 (Calif.); Federal Life Ins. Co. v. Firestone, 15 P. (2d) 141 (Okla.); New York Life Ins. Co. v. Roufos, 83 F. (2d) 620 (C.C.A. 6); Travelers Insurance Co. v. Selden, 78 F. 285 (C.C.A. 4); Harrison v. New York Life Ins. Co., 78 F. (2d) 421 (C.C.A. 4); New York Life Ins. Co. v. Brondwene, 172 Atl. 669 (Pa.); Metropolitan Life Ins. Co. v. Funderbunk, 81 S.W. (2d) 132 (Tex.); Travelers Ins. Co. v. Harris, 212 S.W. 933. (4) (a) Death due to the combined effects of an accidental injury and a pre-existing disease was not within the coverage of the accidental death benefit of the policy. Clarke v. New Amsterdam Casualty Co., 179 Pac. 195 (Calif.); Stanton v. Travelers Insurance Co., 78 Atl. 317 (Conn.); Crandall v. Continental Casualty Co., 179 Ill. App. 330; Sharpe v. Commercial Travelers Assn., 37 N.E. 353 (Ind.); Binder v. National Mass. Acc. Assn., 102 N.W. 190 (Ia.); Pacific Mutual Life Ins. Co. v. Deschain, 95 Pac. 580 (Kan.); Leland v. Order of Commercial Travelers, 124 N.E. 517 (Mass.); Thomas v. Fidelity & Casualty Co., 67 Atl. 259 (Md.); White v. Standard Life & Acc. Co., 103 N.W. 735 (Minn.); Jiroch v. Travelers Insurance Co., 108 N.W. 456 (Neb.); Penn v. Standard Life & Accident Co., 73 S.E. 99 (N.C.); Aetna Life v. Dorney, 67 N.E. 254 (Ohio); Provident Life & Acc. Ins. Co. v. Campbell, 79 S.W. (2d) 292 (Tenn.); Western Indemnity Co. v. Mac Kechine, 185 S.W. 615 (Tex.); Mutual Benefit Health & Acc. Assn. v. Ryder, 185 S.E. 894 (Va.); Cretney v. Woodmen Accident Co., 219 N.W. 448 (Wis.); Mutual Accident Assn. v. Barry, 131 U.S. 100; Standard Accident Insurance Co. v. Rossi, 35 F. (2d) 667, (C.C.A. 8); O'Brien v. Massachusetts Bonding & Ins. Co., 64 F. (2d) 33 (C.C.A. 8); National Masonic Acc. Assn. v. Shyrock, 73 Fed. 774 (C.C.A. 8); Kerns v. Aetna Life, 291 Fed. 289 (C.C.A. 8). (b) The "proximate cause" rule is inapplicable where death resulting from the combined effects of an accidental injury and a pre-existing disease is not within the coverage of the policy. Carr v. Pacific Mutual Life Ins. Co., 100 Mo. App. 602; Christianson v. Metropolitan Life (Mo. App.), 102 S.W. (2d) 682; Wheeler v. Fidelity & Casualty Co., 298 Mo. 619; Kingsland v. Metropolitan Life Ins. Co., 37 P. (2d) 335 (Mont.); Federal Life Ins. Co. v. Firestone, 15 P. (2d) 141 (Okla.); Penn v. Standard Life & Accident Ins. Co., 73 S.E. 102 (N.C.), 76 S.E. 262; White v. Standard Life & Acc. Co., 103 N.W. 735 (Minn.); Travelers Protective Assn. v. Davis, 67 F. (2d) 260 (C.C.A. 5); Aetna Life Ins. Co. v. Ryan, 255 F. 483 (C.C.A. 2); Illinois Commercial Men's Assn. v. Parks, 179 Fed. 794 (C.C.A. 7); Commercial Travelers Mutual Acc. Assn. v. Fulton, 79 F. 423 (C.C.A.). (c) Even on assumption that the "proximate cause" rule is applicable where the policy only insures against death resulting from an accidental injury "independently of all other causes," nevertheless it cannot apply where the policy further provides that it does not cover death resulting directly or indirectly from disease. First National Bank v. Equitable Life Assurance Soc., 144 So. 451 (Ala.). (d) An accidental injury cannot be the proximate cause of death if the injury itself would not have caused death except for the existence of a disease. (5) An instruction is erroneous which informs the jury that plaintiff was entitled to recover under the policy notwithstanding the insured was afflicted with...