Spigener v. Great Western Ins. Co.
| Decision Date | 17 December 1937 |
| Citation | 107 S.W.2d 847,232 Mo.App. 659 |
| Parties | ALBERTA SPIGENER, RESPONDENT, v. GREAT WESTERN INSURANCE CO., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Marion D Waltner, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Mrs Sylvester Wells and Hume & Raymond for respondent.
J. K Owens for appellant.
--This appeal comes to us from the circuit court of Jackson county at Independence. The case is an action on a policy of accident insurance issued by the defendant to one Henry J. Spigener as the insured thereunder, in which the plaintiff (his daughter) was named as the beneficiary.
On the trial in the court below, judgment went for the plaintiff in the sum of $ 500; and the defendant has appealed.
The plaintiff's amended petition, on which the case was tried, alleges that, on March 16, 1934, the defendant executed, issued, and delivered to one Henry J. Spigener its noncancellable, dividend policy, by the terms of which the defendant agreed that, should Henry J. Spigener die while said policy was in force, solely from bodily injuries, effected directly and independently of all other causes through accidental means, the defendant would pay to the plaintiff, the named beneficiary in said policy, the sum of $ 500; that, on or about January 18, 1935, the insured accidentally fell on the steps and sidewalk of his home in Kansas City, Missouri, with great force and violence; that his brain and his nervous and circulatory systems were so shocked, bruised, contused, and injured by reason of said fall that he died from the effects thereof on January 25, 1935; that said death resulted from bodily injuries effected directly and independently of all other causes through such fall, as provided in said policy; that all premiums had been paid, and said policy was in force and effect at the time; that the plaintiff made due proof of death and did everything under the provisions of the said policy required of her to be done to entitle her to payment; that she has demanded such payment, and such has been refused by the defendant; that such refusal has been without cause and has been vexatious; and that she is entitled to a penalty in the sum of $ 50 and a reasonable attorney's fee in the sum of $ 200 by reason thereof--for which, together with the principal sum of $ 500, judgment was prayed.
Thereafter, the defendant filed a general demurrer to such amended petition, on the ground that it did not state facts sufficient to state a cause of action, which was overruled. Following the denial of such demurrer, the defendant filed answer, in which it admitted the issuance of the policy and denied each and every other allegation therein contained.
The policy contained, among others, the following provisions:
Section 3, under the heading "Ordinary Accidents," is one of the sections following in said policy, referred to, and is as follows:
"If 'such injury,' except as otherwise provided for in Section VII hereof, is sustained by Insured in any other manner than as covered by paragraphs 1 and 2 of this Section II and shall wholly and continuously disable the Insured from the date of the accident and shall, within thirty days from such date, result in one of the losses specified in this paragraph, the Company will pay for any one such loss, in lieu of all other indemnity, the sum set opposite injuries resulting from one accident."
Thereafter, follows a schedule of the losses covered by said paragraph, together with the respective amounts to be paid in the event of such losses, among which is found the loss of life of the insured for which $ 500 was agreed to be paid. There is no contention that the loss herein was covered by paragraphs one and two, referred to, or that it came within any of the exceptions of Section 7.
There is not any contention that the policy was not in full force and effect at the time of the injuries mentioned, from which the insured afterward died, or that proof of death was not made as required by the terms of the policy.
From the record, it appears that the defendant is a life and accident insurance company engaged in the business of life and accident insurance in the State of Missouri; and it was admitted that it issued the policy in question on the life of the said Henry J. Spigener.
There is evidence tending to show that, on January 18, 1935, the insured lived at 2544 Michigan Avenue, Kansas City, Missouri; that, on the morning of that date, on leaving his residence, he fell, striking the back of his head with great force, and lay in the position in which he fell groaning with pain until assisted to his feet by others; that he was engaged at such time as janitor at the Manufacturers' Exchange Building in Kansas City and had been so engaged for a period of forty-three years; that he complained of his head hurting but went to his work; that, when he returned from work that evening, there was a large knot on his head and he complained of pain in his head; that the knot on his head was a little larger than a small walnut; and that, thereafter, on each successive day, he went to work until January 25, when he died.
There is evidence tending to show that, during that time, he constantly complained of pain in his head. There is some evidence tending to show that, during this time, he had help in doing his work. There is evidence by fellow employees tending to show that, while he was on his work, he constantly complained of pain in his head. When he was taken violently ill on the night of January 24, 1935, he was taken to the hospital, after which he was returned to his home on the same evening, where one Dr. Caldwell was called to attend him. Dr. Caldwell was with him for about an hour when he was called to his office for a while and returned a few minutes before the insured died, about one o'clock in the morning of January 25.
There is evidence by Dr. Caldwell to the effect that the insured died from coronary thrombosis but that his death, in his opinion, was contributed to by the fall which he had received. His testimony was to the effect that a fall and injury of such character would hasten the coronary thrombosis to a termination, that such a fall would follow up the blood stream and hasten the occlusion of the thrombosis and finish up the case. The record shows that the insured died within about five hours of a week after his injury. It was testified to by Dr. C. G. Leitch, as an expert witness for the defendant, that, if the fall which the insured received should be considered a factor in his death, the death should occur within a period of one week after the injury was received.
Delphine Watkins testified that she helped the insured up at the time that he fell and struck his head; that she was living in the same house with the insured and was well acquainted with him; and that she knew where he was employed and by whom. She testified that, after she helped him up, he went on to his work and that he was complaining of great pain. She stated that he worked every day after his injury up to the date upon which he died; that he would go to his work at seven o'clock in the morning and return home about 7:30 or 8:00 o'clock in the evening; and that, on the twenty-fourth, the day before the night on which he died, he was at his work all day.
Cecil Spigener, a son of the insured, testified that the insured was sixty-six years of age at the time of his death; that he knew nothing about the accident; and that he was not at home at the time of the accident. Being questioned as to the length of time that the knot remained on the insured's head, he replied that he could not say because the insured kept right on working; that he would leave for his work about 7:00 o'clock in the morning and return about 8:00 or 9:00 o'clock in the evening; and that he worked every day after his injury, the same as he had always worked, until the time he went to the hospital.
Lottie Spigener, a sister of the plaintiff in this case, testified that she visited her father on two occasions between January 18 (the date on which he was hurt) and January 25 (the date on which he died) and that he was on the job working at such times.
There was testimony from witness Oscar C. Moss, a fellow employee with the insured, to the effect that the insured was at work on his job all of the time after the eighteenth and up to the date on which he died. Witness Moss also testified that after the eighteenth, the insured had help in...
To continue reading
Request your trial
- Clay County State Bank v. Health Culture Co.
-
Horn v. Travelers Ins. Co., 3659.
... ... He found the insured "in great agony, complaining of pain in his abdomen." At that time a large mass was found "around the navel, ... In the case of Spigener v. Great Western Insurance Co., 232 Mo.App. 659, 107 S.W.2d 847, loc.cit. 851, a suit for benefits ... ...