Smith v. Missouri Ins. Co.
| Decision Date | 01 May 1933 |
| Docket Number | 17737 |
| Citation | 60 S.W.2d 730 |
| Parties | SMITH v. MISSOURI INS. CO. |
| Court | Kansas Court of Appeals |
Rehearing Denied May 22, 1933.
Appeal from Circuit Court, Buchanan County; J. V. Gaddy, Judge.
“ Not to be published in State Reports.”
Action by Gertrude Smith against the Missouri Insurance Company. Judgment for plaintiff, and defendant appeals.
Reversed.
Morrison, Nugent, Wylder & Berger, of Kansas City, for appellant.
Fred W. Lewis, of Kansas City, for respondent.
This is an action upon a policy of industrial life insurance. There was a trial before a jury, resulting in a judgment in favor of plaintiff in the sum of $250.00. Defendant has appealed.
The facts show that the policy of insurance in question was issued by the defendant on November 24th, 1930, upon the life of one Josie Smith. The policy named, as beneficiary, the plaintiff, Gertrude Smith. The insured died on September 26th, 1931. There was no application for the policy signed, or a medical examination made, but the policy contained a provision that, if the insured died from any forms of the various diseases mentioned therein, including any diseases of the heart or kidneys, within one year from the date of the policy, it should become void. Defendant’s answer pleads this provision of the policy and that the deceased died within one year from the date of the policy from said specific diseases.
The sole question in dispute at the trial, and submitted to the jury, was whether insured died from a disease or diseases of the heart or the kidneys. The proofs of death submitted by the plaintiff to the company contained a certificate signed by the superintendent of General Hospital No. 2, in Kansas City, stating that insured died at that hospital on September 26th, 1931, of chronic diffuse glomerular nephritis and myocardial insufficiency. There is no dispute but that the former is a kidney and the latter a heart disease.
There was introduced in evidence, by the defendant, records of said hospital showing insured’s entrance therein on September 1st, 1931, and the progress of her sickness from that day until the time of her death, covering a period of 26 days. These records show that when she was admitted to the hospital her trouble was diagnosed as (1) "drug addiction," (2nd) "cardio renal," and that the final diagnosis of her case was "chronic diffuse glomerular nephritis," "myocardial insufficiency," "bronchial asthma" and "drug habit."
Plaintiff testified that insured was her niece; that insured was single and had lived with the witness in Kansas City for a period of ten years just prior to her death. Plaintiff first stated that, at the time of her death, insured was about 27 years of age, and later, that she was about 36 years of age at that time; that insured worked at house work during all the ten years that she lived with the witness; that insured was struck by an automobile on June 9th, 1931; that when she was brought home the witness discovered bruises upon her back, her legs were stiff, her feet were swollen and her eyes were black; that insured went to bed and the witness called a doctor; that the insured stayed in bed for several weeks; that after the automobile accident insured did not work or earn any money; that deceased spent some time in the hospital as a result of the accident and returned home; that thereafter she was in bad health; that insured walked with a stick and could do no work; that insured returned to the hospital on or about the first of September and remained there until the 26th of that month, when she died; that from June 9th, until insured went to the hospital the second time, the witness observed that insured’s physical condition was growing worse, complaining of her back and legs.
The plaintiff further testified that, during this time, insured complained of her back and legs; that she had never thus complained before she was struck with the automobile; that prior to that accident insured had never complained of her heart or kidneys; that she was in good health, so far as the witness knew, during the ten years that she lived with the witness and was able to do her work as housemaid and that her health did not begin to fail until after the accident; that she did not notice that insured had any shortness of breath before she was injured.
Dr. Bradbury, testifying for plaintiff, stated that he saw the insured in a professional way about seven or eight times, beginning about June 10th or 11th, 1931; that he saw her four times at her home and three times at his office; that she came to see him about her condition resulting from the automobile accident; that he found that she was bruised over the right and left eye and on the right and left hip and right leg, also, on the small or lower part of her back and over the right and left kidney; that both of her knee joints were "stiffened up"; that "she had a stiffness in the right and left lower legs, stiffness visible in the right and left hip, bruised on the lower part of her back and also on both hips"; that he did not notice anything particularly wrong with her feet; that he treated her merely for those things that she came to see him about, to-wit: the bruises that she had received, and that he made no examination of her urine; that he did not take a blood count, but did take her temperature about twice during the times that he treated her and found it between 85 and 90 degrees; that he found her pulse from 85 to 90; that normal for the pulse is 72 and temperature 98.4; that he gave her hot applications, bandaged up her bruises and gave her a 25% solution of argyrol to be dropped in her eyes and some Epsom salts for the purpose of elimination; that this was the only treatment he gave her; that she had no broken bones; that she did not complain of shortness of breath; that if she had, he would have made an examination to discover whether she had heart or asthmatic troubles; that had she had heart trouble she would have been breathing "awful hard" after climbing up the 16 steps of the stairway, leading to his office but that he did not notice any such breathing by her; that it appeared for a while as though insured was doing well under his treatment but finally it seemed that something went wrong and he advised her to go to the hospital; that he did not see her after that time.
He further testified...
To continue reading
Request your trial