State Farm Mut. Auto. Ins. Co. v. Underwood

• Decision Date: 13 April 1964
• Docket Number: No. 50149,50149
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant, v. Billy Irene UNDERWOOD, Respondent.
• Court: Missouri Supreme Court

Page 459

377 S.W.2d 459

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant, v. Billy Irene UNDERWOOD, Respondent.

No. 50149.

Supreme Court of Missouri, En Banc.

April 13, 1964.

Fred F. Wesner, and Wesner, Wesner & Mayer, Sedalia, for plaintiff-appellant.

Gayles R. Pine, and Pine, Welling & Jones, Warrensburg, for respondent.

EAGER, Chief Justice.

The original appeal in this case was decided by the Kansas City Court of Appeals, as shown by its opinion reported Mo.App., at 365 S.W.2d 761. This Court sustained an application for transfer.

Plaintiff-appellant issued to Edward Leon Underwood an 'Automobile Policy' which contained provisions for indemnity of $5,000 for death by accident, as more particularly specified. He died on February 17, 1960, and claim was made for such indemnity. Thereupon the insurer filed a declaratory judgment suit and Mrs. Underwood, as beneficiary, filed a counterclaim for the proceeds of the policy with interest, damages, and attorneys' fees. The declaratory judgment action was subsequently dismissed without prejudice, and the case proceeded upon the counterclaim and a reply. Defendant recovered a verdict and judgment for the face amount of the indemnity, with interest, being a total of $5,425. In essence this is a suit upon the contract with the parties plaintiff and defendant reversed. The pleadings were sufficient to raise all the issues which will be discussed. The policy was admittedly in force at the time of the death.

On Friday, January 29, 1960, Mr. Underwood was involved in what appeared to be a minor automobile accident in Jackson County, where he was then working. Another car slid into his car on an icy street inflicting some damage to the left side of his car. He stated at the time that he was not injured, although the hospital record of four days later stated that he noticed a pain in his back at the time; in any event he drove home. He and his wife were then living at Leeton, and he commuted home about twice a week. His wife testified that on his arrival home he was 'real white' and was not 'feeling well'; that he stayed at home that weekent, and his back hurt so badly that he did not sleep much. He went to work on Monday, but returned home during the afternoon and stated that he had been to see a doctor. On February 2, 1960, he entered the Holden Hospital with a provisional diagnosis of 'unstable low back' and a possible rupture of an intervertebral disc; the final diagnosis was the same except that it corroborated the existence of a herniated lumbar disc. He was placed in traction, but his back pain continued. On February 15, 1960, he was taken to surgery for a 'partial Hemi-laminectomy with Removal of Disc at L5 and a Spinal Fusion.' This, as we understand, meant the removal of a ruptured disc between the last lumbar vertebrae and the sacrum and the fusing of that area with a bone graft. Apparently both intravenous and inhalant anesthetics were used, but in any event the patient was under general anesthetics. The surgeon, his assistant and the anesthetist were osteopathic physicians. The ruptured disc, or the necessary portion of it, was removed and the locale was being prepared for the bone graft or fusion when the patient suffered a 'cardiac arrest.' Radical restorative measures were instituted; the patient's chest was opened surgically and the heart massaged; within 2-3 minutes the heart beat was restored. The chest was closed, the surgical site in the back was closed and restorative medications administered. The patient developed a form of convulsions, apparently mild, and he remained in a comatose or semi-comatose condition. On February 16 he was transferred to the Kansas City Osteopathic Hospital, but his condition gradually deteriorated and he died on the next day. He never really regained consciousness.

Two separate death certificates appear in our record, made by two different physicians. The one which the parties seem to accept as the official one states 'Cause of Death' as follows:

'Part 1.

Conditions, if any, which gave rise to above cause (a), stating the underlying cause last.

Death was caused by:

Immediate cause (a) Myocardial Failure

Due to (b) Cerebral anoxia

Due to (c) Cardiac Arrest.

Part 11 Other significant conditions contributing to death but not related to the terminal disease condition given in Part 1(a) Pt was being operated upon for back condition originating from auto accident--occurring--1-29-60.'

An autopsy report was also in evidence; edema, broncho-pneumonia, hemothorax, this showed, among other diagnoses: severe compression atelectasis, cerebral congestion interpulmonary hemorrhage, pulmonary and pulmonary thrombosis. It seems obvious that most of these were lung complications. This report further stated: 'From the standpoint of pathology death was due to anoxia when the oxygen cycle was interrupted in the lungs.' The 'Final Diagnosis and Complications' stated on the record of the hospital where the insured expired, were: '(1) Acute myocardial and circulatory failure and, (2) Cerebral anoxia with cortical damage due to cardiac arrest 2-15-60 at Holden, Missouri. COMPLICATIONS: (1) Interstitial emphysema, (2) Partial atelectasis of upper lung fields, (3) Pneumothorax.' Upon entry into the first hospital on February 2, 1960, it was noted that the rate, rhythm and intensity of the patient's heart were regular, no murmurs, no rales, and normal area of dullness on percussion. This appears to have been a routine examination. From an X-ray a diagnosis of chronic bronchitis was made. Mrs. Underwood testified that her husband 'was in good health' and that she had never known of his having 'heart trouble' of any kind. His mother corroborated that testimony.

Under the specific policy provisions involved here the insurer agreed to pay: '* * * in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, provided the death shall occur: (1) within ninety days from the date of such accident, * * * Bodily Injury--means bodily injury, sickness or disease including death at any time resulting therefrom. Insuring Agreement IV (which includes the above provisions) does not apply: * * * (b) to bodily injury or to loss caused by or resulting from disease except pus forming infection which shall occur through bodily injury to which this insurance applies; * * *.' (Insert in parentheses is ours.) It is substantially conceded that the insured did suffer some bodily injury on January 29, 1960, while occupying his automobile, thus beginning the train of events. The issue is whether that injury, under the terms of the policy and our cases, operated as the requisite cause of his death. It should be noted that there was no medical or other expert testimony.

The plaintiff (appellant) presents these points: (1) that the Court erred in not sustaining its motion for a directed verdict and in failing to sustain its after-trial motion for judgment because: the evidence failed to show that the death resulted directly and independently of all other causes from bodily injury, and that this question was left in the realm of conjecture, without substantial evidence; the burden resting upon defendant required her to establish that cause of death by credible medical testimony and with 'reasonable medical certainty'; the policy provisions are clear and unambiguous, and the courts may not rewrite them under the guise of construction. Defendant, answering, submits: that the death certificate made a prima facie case for her, establishing that the back injury was the 'direct, proximate, efficient and producing cause' of the death; that the hospital records speak as though the physicians making them were present and had testified, hearsay being thus obviated; that necessary medical or surgical treatment for a bodily injury and resulting in death, is not an intervening cause breaking the causal connection, but constitutes a death from bodily injury within the meaning of the policy; that insurer, having offered no evidence to rebut defendant's prima facie case, cannot escape liability by building 'inference upon inference,' as to the related (and stated) causes of the death.

We may start with the proposition that the beneficiary of a policy of accident insurance always has the burden of proving a cause of death which is within the insuring provisions. Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W.2d 907, 39 A.L.R. 56; Phillips v. Travelers' Inc. Co. of Hartford, Conn., 288 Mo. 175, 231 S.W. 947; Gennari v. Prudential Ins. Co. of America, Mr., 335 S.W.2d 55; Boring v Kansas City Life Ins. Co., Mo., 274 S.W.2d 233. This burden remains upon the beneficiary throughout the case (Boring, supra; Felker v. Metropolitan Life Ins. Co., Mo.App., 288 S.W.2d 26), although upon the establishing of a prima facie case the insurer may be required to...