Terry v. Woodmen Acc. Co.

• Decision Date: 05 January 1931
• Docket Number: No. 16548.,16548.
• Citation: 34 S.W.2d 163
• Parties: MAUD TERRY, RESPONDENT, v. WOODMEN ACCIDENT COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

34 S.W.2d 163

MAUD TERRY, RESPONDENT, v. WOODMEN ACCIDENT COMPANY, APPELLANT.

No. 16548.

Kansas City Court of Appeals. Missouri.

January 5, 1931.

Appeal from Circuit Court of Grundy County. — Hon. L.B. Woods, Judge.

REVERSED AND REMANDED.

Leslie P. Robinson for respondent.

Henry S. Conrad, L.E. Durham, Hale Houts and Hus M. Lee for appellant.

BLAND, J.

This is a suit upon a policy of accident insurance in the sum of $1,000, insuring one Homer D. Terry, in favor of his mother, as beneficiary, who is the plaintiff herein. The policy insured Terry against loss of life, etc., or disability "effected through violent, external and accidental means and entirely independent of all other causes, and which shall leave some visible marks upon the body." There was a verdict and judgment in favor of plaintiff in the sum of $1,000, the amount of the policy, together with $100 penalty and $25 attorney's fee for vexatious refusal to pay. Defendant has appealed.

The facts show that insured was injured about 3:30 P.M. of Friday, September 9, 1927, while working as a section hand for the Rock Island Railway Company. He was injured while cranking a railroad motor car that was being used by the section men. The crank became disengaged, whirled in insured's hand and struck him on the left side of the abdomen and over his left eye. After the crank struck him he appeared to be dazed and acted as though his breath had been "knocked out." Immediately after he was injured he was taken to Jamesport, a town six or seven miles west of where he was injured. The next morning it was noticeable that he was suffering from his injuries. On Sunday, September 11th, he went to the home of his mother who lived at that time twelve or thirteen miles east of Jamesport. He rode a hand car from Jamesport to a point within a quarter of a mile of where his mother lived and walked from there home. He arrived at his mother's residence a little before noon and left for Jamesport about 3 o'clock in the afternoon.

While at his mother's he suffered with his abdomen. He returned Sunday evening to the residence of his landlady in Jamesport. At supper time he was suffering and ate but little. The next morning he went back to work for the railway company, although he was sick. He continued at work until September 15th, when the crew of which he was a member was laid off. During this time he exhibited symptoms of growing worse. After being laid off his condition continued to become more aggravated. He was examined by Dr. Thompson, on September 17th, who diagnosed his ailment as appendicitis and advised an immediate operation. On Sunday, September 18th, he was taken to the home of his grandmother at Jamison, eight or nine miles north and west of Jamesport, where he remained until he was taken, on September 21st, to St. Joseph for an operation for appendicitis. While at the home of his grandmother he suffered severely from his abdomen. Hot packs were applied thereto. Insured continued to pull the hot packs over a blue or discolored place that was observed on the left side of his abdomen. A consultation of doctors was had concerning his condition and it was found that insured had a general condition of peritonitis and his chance of recovery was slight. The doctors concluded, as a last resort, to take him to St. Joseph for an operation. He was taken there on September 20th, was operated on by Dr. Conrad on the 21st and died on the morning of the 25th.

There was a great many witnesses to the accident who testified that they did not see the crank strike deceased in the stomach but saw it strike his head and saw a knot on his head thereafter. Many of them testified that he might have been struck in the abdomen as well as the head, although they did not see the crank strike him in the stomach. One testified to circumstances that would raise an inference that deceased was struck in the stomach, also. No one actually saw him struck in the stomach. There is enough in the record in the way of circumstantial evidence, and inferences to be drawn from the testimony, tending to show that deceased was so struck. However, in the proofs of death furnished defendant no mention of the striking of deceased in the stomach was made. Those proofs contained a document called "Friend's Certificate," stating: "Deceased was injured while cranking motor. Crank flew out and hit him and jerked him." The surgeon's certificate which was signed by Dr. Kenney (who did not testify at the trial) stated that deceased "was hurt by the crank of an engine which he was cranking, said engine backfired and crank was thrown out of the socket and he was jerked and twisted violently and from the time of injury he had tenderness and pain which continually grew worse;" that the doctor first attended deceased on September 17, 1927; that deceased's abdomen was tender and distended and sensitive on both sides; that he then was suffering from peritonitis; that the cause of death was peritonitis "probably from violence." Under the heading "Remarks" appeared the following:

"The violent twist and strain received from the back firing of the engine probably ruptured the bowel and his peritonitis began at once and gradually increased until death."

Claimant's certificate signed by the plaintiff states that deceased: "was cranking motor of section hand car on Rock Island Railroad. The crank flew out and struck deceased in the head, which blow jerked him or twisted him in such a manner as to injure him in the abdomen from which he developed peritonitis and died on September 25, 1927;" that "from the time of the injury he suffered with pain in the abdomen and steadily increased until his death."

At the request of the plaintiff, the court gave, among others, the following instructions:

"2.

"The court instructs the jury that if you find and believe from the evidence that Homer B. Terry died in St. Joseph, Missouri, September 24, 1927, and that such death resulted from bodily injuries sustained through external, violent and accidental means, and that the cause of the death of the said Homer B. Terry was an accidental wound to his abdomen, sustained in cranking a motor car on the 9th day of September, 1927, if you so believe, and that by reason of such blow to the abdomen or wound sustained by reason of such blow, and by reason thereof peritonitis developed which caused the death of Homer B. Terry, if you so believe then your verdict will be for plaintiff.

"3.

"The court instructs the jury that an accident is any event happening without any human agency, or if happening through human agency, an event which under the circumstances is unusual and unexpected to the person to whom it happened. The happening of an event without the occurrence of the will of the person by whose agency it was caused, or the happening of an event without any human agency, and you are so instructed that if such an accident occurred to Homer Brooks Terry on the 9th day of September, 1927, and if you find that such accident was the moving or producing cause of his death, without which his death would not have occurred, and that his death resulted from said accidental cause independent of all other causes, or that his death would not have happened had it not been for such accident, if any, and that the death of deceased was effected through violent, external and accidental means, and that after the accident there were visible marks upon the body of the deceased, then you will return a verdict for plaintiff on the policy sued on, in a sum not to exceed one thousand dollars ($1,000).

"4.

"The court instructs the jury that visible marks upon the body, as used in these instructions, are not to be confined alone to bruises on the surface of the body.

"If the internal injury of deceased, if you believe he was thus injured, produces a pale and sickly look in the face, if it causes vomiting or retching, or if it sends forth the observation of the eye in the struggle of nature, any signs of the injury then those are external and visible signs, provided they are the direct result of the injury."

It is insisted by the defendant that the court erred in giving plaintiff's instructions numbered 3 and 4. Instruction No. 3 does not fully define the term "accident" as used in the policy. [Cameron v. Mass. Protective Ass'n, 220 Mo. App. 780, 784, 785; Caldwell v. Ins. Co., 305 Mo. 619; Curry v. Ins. Co., 221 Mo. App. 626.] There is no question but that Instructions 3 and 4 are erroneous. While there was some evidence tending to show that a sudden and unexpected "dodge," "oscillation," "push" or "twist" of the body, when the intestinal tract is full, can cause a rupture of a small intestine which might result in peritonitis, that the blow deceased received to the head, alone, could not produce such effect. However, Instructions 3 and 4 are broad enough to permit the jury to rove at will and find any of the happenings testified to as having occurred to deceased when the crank flew out, as an accident, and base recovery upon that, as Instruction No. 3 directs a verdict.

The instructions are erroneous for another reason. If...