Schepman v. Mutual Benefit Health and Acc. Assn.

• Decision Date: 05 April 1937
• Docket Number: No. 18858.,18858.
• Citation: 104 S.W.2d 777
• Parties: HENRY F. SCHEPMAN, RESPONDENT, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, APPELLANT.
• Court: Missouri Court of Appeals

104 S.W.2d 777

HENRY F. SCHEPMAN, RESPONDENT, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, APPELLANT.

No. 18858.

Kansas City Court of Appeals. Missouri.

April 5, 1937.

Appeal from Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Sherman & Sherman for respondent.

Brown, Douglas & Brown for appellant.

BLAND, J.

This is a suit on an accident insurance policy. There was a verdict and judgment in favor of the plaintiff in the sum of $5266.66, and defendant has appealed.

The facts show that one Orland O. Turner, a druggist of St. Joseph, Missouri, the holder of an accident insurance policy with the defendant, met his death on November 30, 1934, as a result of a hemorrhage of the brain. The wife of the insured, Mrs. Laura L. Turner, was the beneficiary in the policy. Defendant denied liability for the death. Mrs. Turner assigned to the plaintiff her cause of action upon the policy and this suit was brought by him.

It is claimed by the plaintiff that insured suffered an accidental injury by striking his head against the headboard of his bed on October 21, 1934, resulting in his having a stroke of apoplexy the next morning and, finally, a second stroke thirty-nine days after the accident, resulting in his death. The second stroke, it is claimed, was induced by "delayed apoplexy" caused by the blow on the head of the insured.

Mrs. Turner, the wife of the insured, was the only witness to the accident. She testified that on the evening of October 21, 1934, insured was sitting in his nightclothes in an upright position in his bed reading with the aid of a light from a fixture hanging from the ceiling about on a line with the foot of the bed; that there was a bed light over the headboard; that insured decided to use the bed light and, in order for him to do so, it was necessary for him to assume a reclining position; that in changing positions he struck the back of his head against the front side of the headboard. The thickness of the headboard was somewhat heavier than that of a pencil.

Mrs. Turner further testified that insured "threw himself back — he didn't deliberately lie down. Mr. Turner was a man of very rapid movements. He never sat down or got up or made any movement in a slow, deliberate way. He did this in the same way. He just flopped back and as he hit it, he struck his head right here (indicating) to the side of a little bit and with such force that I said, "Honey, what are you trying to do, knock the bed down? And he said he had forgotten, that he had scooted back in bed." The witness further testified that insured did not shove himself back, "he just flopped back, just an abrupt flop;" that he did not strike the edge of the bed but the front or flat side; that the witness asked insured whether he was hurt and he replied, "`Yes, it hurts,'" "and he said that in a rather emphatic manner." The witness asked him if he wanted her to rub anything on his head and he said, "No, I think it will be all right."

The evidence further shows that, as a result of the blow, there appeared a red place somewhat puffed up on the back of insured's head. When the swelling subsided, three or four days afterwards, an area of tenderness was found by the doctor about two inches in diameter at the base of the skull of insured, starting about an inch to the left of the right ear and extending over toward the left. This area was about half an inch above the bottom of the ear. The tenderness continued until the time of the death of insured.

Mrs. Turner further testified that insured resumed his reading from the bed light; that she went to another part of the house and stayed about an hour; that she returned about ten o'clock and found insured asleep; that he slept until six o'clock the next morning; that beginning about three o'clock she became restless; that she tried not to waken insured and did not do so but finally her restlessness caused him to waken; that he was asleep from eight and one-half to nine hours; that there was nothing to indicate to her that insured was suffering any pain during the night; that so far as she knew he did not waken prior to three o'clock and that to her knowledge did not waken after that time until six o'clock; that he was able to sleep, and showed no evidence of pain, approximately nine hours so far as she knew; that "he could have been suffering pain and I never knew it;" that when insured awoke he asked Mrs. Turner, "What is the matter, are you ill?;" that he did not say anything about the injury to his head; that the conversation covered a few seconds; that he then started to get up with the purpose of going to the bathroom but had barely placed his feet on the floor when he fell back across the bed in a faint, where he remained unconscious for fifteen or twenty minutes; that after he regained consciousness and the doctor was called he suffered intense pain in the back of his head; that this pain could not be relieved with medicine; that he continued to suffer from this pain until the time of his death; that in the interim he obtained no relief from these pains until the end of three weeks when they were not so bad; that he was confined to his bed about four weeks when he began to sit up a little in bed; that he then sat up in a chair for a while and finally was able to walk about the house. He lived above his store and went down the stairs a day or two before Thanksgiving, not into the store, but merely to get into the sunshine a little on the front steps. On Thanksgiving Day he relieved a man in the store for about an hour, but did not wait on anyone, after which he went upstairs and to bed. At no time was he out of bed for the entire day. On the night of his death he had been listening to the radio and started from the bathroom to his bed, when he had another stroke, rendering his unconscious, in which state he remained until the time of his death, a few hours afterwards.

The evidence shows that in 1923 insured was treated for pernicious anaemia, which the medical testimony shows is incurable. However, the evidence on the part of the plaintiff tends to show that for several years prior to his death insured was apparently in good health. He had never suffered from any unusual headaches or pain in the back of the head. An examination made of him after his first stroke showed that he did not have high blood pressure and that his heart and lungs were normal. After the first stroke, aside from the severe headaches, the sore spot where his head struck the bed and his weakened physical condition, there was nothing unusual in respect to insured's mental and physical condition.

The theory of delayed apoplexy advanced by the physicians for the plaintiff, as applied to the facts in this case, is that the blow received when insured's head struck the headboard of the bed, produced a hemorrhage in the small blood vessels or capillaries of the brain which produced an area of softening; that this condition, in the course of time, tended to weaken the larger vessels thereby predisposing them to rupture; that one or more of them finally did rupture at the time of his death.

Plaintiff's physicians, however, testified that death by cerebral hemorrhage, unaccompanied by trauma, is common in men of about the age of 56, which was that of insured, and that the initial stroke on October 21st, followed by a second and fatal stroke on November 30th, was typical of the ordinary processes of arterial degeneration; that in the normal course of arterial degeneration a minor stroke might be anticipated before a serious, fatal one; that if it were not for the history of the case they would arrive at the conclusion that insured's death was due to arterial degeneration. However, arterial degeneration is usually caused by hardening of the arteries but can be caused by any disease associated with the blood vessels. There is no evidence, in this case, that deceased suffered from hardening of the arteries. One of insured's physicians testified that pernicious anameia was not a disease of the blood vessels but a disease of the blood, itself, and would not have any influence in causing arterial degeneration. There was much testimony to the contrary. However, the two physicians testifying for plaintiff, stated, in answer to hypothetical questions submitting the history of the case, that the death of insured was caused by delayed apoplexy caused by the blow he received on the head. Being questioned relative to whether the theory of delayed apoplexy could explain the first stroke, they said that it could not inasmuch as it would require several days for a condition to develope sufficient to cause a rupture of the larger blood vessels. However, there was sufficient in their testimony to support a conclusion on the part of the jury that there was a connection between the blow on the head and the first stroke.

One of plaintiff's physicians stated that an autopsy should have been performed. The evidence shows that defendant did not request one until two and one-half months after the burial of the insured. He had been buried in a hermitically sealed vault. Mrs. Turner refused the request as the vault would be destroyed in the exhumation.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that there is no substantial evidence to support the finding that the blow to insured's head caused his death. In this connection defendant says:

"Is the burden of proof satisfied by the inference that a blow to the head — not sufficient to break the skin, to produce a bruise or contusion no longer visible three or four days thereafter, to necessitate treatment or to prevent the recipient from continuing with his evening reading — could produce a stroke thirty-nine days thereafter, when there was on the following morning a stroke in no way connected with this blow, a stroke sufficiently serious to produce unconsciousness for a period of...