Wright v. Order of United Commercial Travelers Travelers America

• Decision Date: 06 April 1915
• Citation: Wright v. Order of United Commercial Travelers Travelers America, 174 S.W. 833, 188 Mo.App. 457 (Mo. App. 1915)
• Parties: ELIZABETH A. WRIGHT, Respondent, v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant
• Court: Missouri Court of Appeals

174 S.W. 833

188 Mo.App. 457

ELIZABETH A. WRIGHT, Respondent, v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant

Court of Appeals of Missouri, St. Louis

April 6, 1915

March 2, 1915;

Rehearing Denied188 Mo.App. 457 at 465.

Appeal from Lincoln Circuit Court.--Hon. B. H. Dyer, Judge.

REVERSED.

Judgment reversed.

L. F Sater and R. L. Sutton for appellant.

(1) The burden of proof was upon the plaintiff to establish the fact that the death of William N. Wright was cauesd by bodily injury, effected through violent, external and accidental means, and that this alone caused his death.Shanberg v Fid. & Cas. Co.,158 F. 1;Natl. Masonic Assoc. v. Shryock,73 F. 774;Stanton v. Trav. Ins. Co.,78 A. 317;Smith v. Railroad,200 F. 553;Ill. Com. Men's Assoc. v. Parks,179 F. 794;White v. Ins. Co.,95 Minn. 77;Searles v. Railroad,101 N.Y. 661;Com. Men's Assoc. v. Fulton,79 F. 423;Kasten v. Interstate Cas. Co.,99 Wis. 73;Keen v. N.E. Acc. Assoc.,161 Mass. 149;Hastings v. Trav. Ins. Co.,190 F. 258;Natl. Assoc. &c. v. Scott,155 F. 92;Laessig v. Travelers Pro. Asso.,169 Mo. 272;Travelers Ins. Co. v. McConkey,127 U.S. 661.(2) Where the evidence is as consistent with a cause of death not accidental, as with an accidental cause, the verdict should be for the defendant.Carnes v. Iowa State Trav. Men's Assoc.,106 Ia. 281;Merritt, Admr. v. Pref. Acc. Assoc., 98 Mich. 338;Louisville Gas Co. v. Kauffman,105 Ky. 101;Trav. Ins. Co. v. Selden,78 F. 288;Warner v. Railroad,178 Mo. 134;Coin v. Talge Lounge Co.,121 S.W. 1;Vernon v. Ia. State Trav. Men's Assoc.,138 N.W. 695;Smith v. Pullman Co.,138 Mo App. 246.(3) The evidence and all reasonable inferences deducible therefrom, fail to prove the case of the respondent, and the case should be reversed on the ground that the greater weight of the eivdence is in favor of the appellant.P. C. C. & St. L. Ry. Co. v. Scherer,205 F. 356;Patton v. Railroad,179 U.S. 658;Asbach v. Railroad,70 Ia. 248;Dozier v. Fid. & Cas. Co.,46 F. 446.(4) There is a difference between an accident and accidental means, and the plaintiff cannot recover without showing that the means of the alleged injury, to which she seeks to attribute the death of William N. Wright, were accidental.Joyce on Ins., sec. 2863;Barry v. Mut. Acc. Assoc.,23 F. 712;Paynev. Frat. Acc. Assoc., 119 Ia. 342;Schmid v. Ind. Trav. Men's Acc. Assoc.,42 Ind.App. 483;Cobb v. Pref. Mut. Assoc.,96 Ga. 818;McGlother v. Prov. Mut. Acc. Assoc.,89 F. 685;Westmoreland v. Pref. Acc. Ins. Co.,75 F. 244;Fedar v. AssuranceCo., 107 Ia. 358.(5) Verdicts must have evidence to support them and must not be founded on mere theory or conjecture.Ward v. Aetna Life Ins. Co.,92 Neb. 51;Boeck v. Modern Woodmen of Amer.,143 N.W. 1000;Reidhead v. Skagit Co.,17 P. 1118;Barry v. U. S. Mut. Acc. Co.,153 F. 717;U. S. v. Ross,92 U.S. 281;Manning v. Ins. Co.,100 U.S. 695;Railroad v. Fulgham,181 F. 91;Perkins v. Railroad,193 F. 219;22 Am. & Eng. Ency. of Law (2 Ed.), p. 1236; 1 Starkie on Ev. 57;Morris v. Railroad,10 Ill.App. 389;State v. Hallen, 146 S.W. 1171.

Avery, Young, Dudley & Killam for respondent.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit on a contract of accident insurance.Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff is the widow of the insured, William N. Wright, and the beneficiary named in the policy.It is stipulated in event the insured suffered "bodily injury effected through external, violent and accidental means which alone and independent of all other causes should occasion death, immediately, or within six months from the happening thereof, "defendant would pay plaintiff, the beneficiary, $ 5000 on account of such death.

The important question for consideration relates to the sufficiency of the evidence to reveal that the insured came to his death through accidental means, as nothing definite and certain touching this matter is shown by direct evidence.Plaintiff's husband was sixty-three years old at the time of his death.He was a traveling salesman by occupation, but temporarily engaged in making some repairs on the residence of Mrs. Moore.While in a kneeling posture and using an ordinary handsaw, he fell over and died within a moment or two thereafter.The task which the insured was performing at the time was, no doubt, a more or less difficult one and entailed a considerable strain of the muscles, but there is no direct evidence that his death resulted from accidental means, and this matter is to be ascertained, if at all, through inference solely.The insured, in doing some repair work on the residence of Mrs. Moore, was operating an ordinary handsaw with a view of removing a pine weather board about five-eights of an inch in thickness and a baseboard in the rear of it about twenty inches above the ground on the outside of the building.He was engaged at a place adjacent to a bay window, where the free area for the work was more or less restricted.Immediately in the rear of the baseboard, through which the insured was driving the saw, stood an ordinary two-by-four studding, to which it was nailed, and immediately in the rear of this was a brick wall.Plaintiff's husband was engaged in the act of sawing, but driving the saw upside down--that is, with the teeth uppermost--through the pine weather board and the baseboard, about one inch thick, to which it was nailed.The teeth of the saw were cutting into the studding immediately behind and the end of the saw blade picked into the brick wall some two to four inches beyond.The insured appears to have been in a more or less cramped position and on his knees while performing this task, and the situation was such as to require him to drive the saw with short strokes.

The day was a warm one--that is, during a heated spell, September 27th,--the hour about noon, and it is said he had been engaged some twenty minutes in thus operating the saw with its teeth uppermost.While thus occupied, the insured fell over and expired within two or three minutes thereafter.His grandson, Roy Wright, came to his aid immediately, but there is no evidence that the insured spoke a word.The grandson says, in describing the condition of the insured at the time, which was probably within a minute, or it may be two, after he was stricken, that "his mouth was open and a stare on his eyes, and his face was a pallid color, and he kind' a gasped like he wanted to say something or was choking, and he moved one arm slightly."Some ten or fifteen minutes after the occurrence, Dr. Smith, the family physician, arrived and says he found life extinct at the time, also "the face was very pale, he had the pallor of death and his face and jaw and mouth bore the evidence of a condition of congestion."

The evidence tends to prove that the insured was a strong, robust man, more than six feet in height, and enjoyed good health; while there is evidence, too, to the effect that he had been poorly of late and suffered a severe attack of headache only a short time before.There is no evidence as to the cause of the death of the insured, other than that to be found in the opinion of the scientific witnesses--that is, the medical men--who testified in the case.In other words, there was no post-mortem examination held, and if the death occurred from the rupture of an artery, such is not revealed in the case by direct evidence.No mark on the body is detailed in evidence, other than the pale and pallid condition of the face and the congested appearances about the mouth, and one witness mentions a congested condition appearing about the back of the neck and head.There was no effusion of blood from any portion of the body, and, as above stated, no autopsy was had with a view of discovering the true cause of death.

However, the expert medical witnesses say that death evidently resulted from the rupture of an artery, and that this was no doubt superinduced by the strain and over-exertion incident to applying the handsaw on a hot day in a cramped position through the weather board, the baseboard, and into the studding beyond, by means of the short stroke, with the saw cutting upward rather than in the natural and usual way.The physicians all say that they do not know positively that any blood vessel was ruptured in the body of the insured, and touching that matter express an opinion only.Only one of the physicians who testified saw the body and that was Dr. W. P. Smith.The other expert witnesses testified on hypothetical questions propounded.The expert witnesses say that, in their opinion, the insured died from the rupturing of a blood vessel near one of the vital centers, and that such was occasioned through increased blood pressure, due to exertion and the strained position or exertion in sawing in a strained position.Dr. Smith and others expressed the opinion also that the death of the insured resulted from the rupture, in their opinion, of the coronary artery.However, as before said, all of the witnesses say that they did not know as a fact that an artery was ruptured.

If it were shown as a fact in the case--that is, by direct evidence--that the deceased suffered the rupture of an artery from the strain incident to the task he was pursuing, it may be the judgment could be sustained, for it...