Young v. New York Life Ins. Co.

• Decision Date: 10 April 1950
• Docket Number: No. 2,No. 41606,41606,2
• Citation: 360 Mo. 460,228 S.W.2d 670
• Parties: YOUNG v. NEW YORK LIFE INS. CO
• Court: Missouri Supreme Court

Page 670

228 S.W.2d 670

360 Mo. 460

YOUNG v. NEW YORK LIFE INS. CO.

No. 41606.

Supreme Court of Missouri, Division No. 2.

April 10, 1950.

Richard S. Righter, Howard A. Crawford, Kansas City, Ferdinand H. Pease, New York City, Lathrop, Crane, Sawyer, Woodson & Righter, Kansas City, of counsel, for appellant.

John Franken, W. A. Franken, Carrollton, for respondent.

WESTHUES, Commissioner.

This case was transferred to this court by the Kansas City Court of Appeals under authority of Section 10, Article V, of the Missouri Constitution, Mo.R.S.A. Appellant insurance company filed a motion to transfer and the principal grounds in its motion were that the cause involved a question of general interest and that a re-examination of the existing law is required.

The case was disposed of in the court of appeals in an opinion written by Cave, P. J., in which all of the judges concurred. It is reported in 221 S.W.2d 843. The opinion contains a complete statement of the facts and a full discussion of the legal points involved. We need to make only a brief statement.

The suit was brought by Pauline P. Young, the widow of Roscoe D. Young, against the defendant insurance company to recover $1,000 under a double indemnity clause in an insurance policy wherein plaintiff was named as beneficiary. On May 23, 1946, the insured, plaintiff's husband, was washing windows at his house in Carrollton, Missouri. While so engaged, a ladder on which he was standing slipped and Young fell thereby sustaining a number of broken ribs and other injuries. Traumatic pneumonia developed and thereafter tuberculosis, resulting in death on August 16, 1946, which was within 90 days from the date of the fall.

A trial resulted in a verdict for plaintiff for $1,000 as provided for in the double indemnity clause of the policy; $500 for attorneys' fees; $100 penalty for vexatious refusal to pay; and $78 for interest. The court of appeals disallowed the items of attorneys' fees and penalty for vexatious refusal to pay and ordered a new judgment to be entered in plaintiff's favor for $1,000, the amount specified in the insurance policy.

The evidence disclosed that for many years the insured had been employed as a diesel engineer by the Sinclair Refining Company. He had worked steadily prior to the fall on May 23, and apparently was in good health. He never returned to work after the fall, in fact, he did not thereafter enjoy good health a single day. Pneumonia continued for about nineteen days. Young continued to be a sick man. He coughed, had a pain in his side, and had some fever. He was sent to the Veterans' Hospital in Excelsior Springs, Missouri, where he died. The death certificate stated the cause of death to be tuberculosis. The defendant company paid the widow the face of the policy but refused to pay under the double indemnity clause, contending that death was not the result of the fall but was due to a pre-existing tuberculosis condition.

There was conflict in the evidence as to whether the insured prior to the fall was suffering from an active case of tuberculosis. All that need be said here is that a jury was justified in finding that Young had an inactive or arrested case of tuberculosis prior to the fall on May 23. The fact that he had been working constantly prior to the fall and thereafter was never able to return to work was a circumstance supporting the medical evidence on that question of fact. The opinion of the court of appeals contains a full statement of the facts to which we refer the reader for additional details.

The ultimate facts as supported by evidence in the record stated most favorably to plaintiff are that Young at the time of the fall had an inactive case of tuberculosis. The injuries sustained by the fall caused traumatic pneumonia which activated the dormant tubercular condition and caused the death of the insured. Considering the above facts to be true, the question presented is whether the defendant company is liable under the following clause in the insurance policy. (We are omitting immaterial provisions.)

'The Double Indemnity Benefit specified on the first page hereof shall be payable upon receipt of due proof that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * *; provided, however, that such Double Indemnity shall not be payable if the Insured's death resulted, directly or indirectly, from * * *; (g) infirmity of mind or body; (h) illness or disease; or, (i) any bacterial infection other than that occurring in consequence of accidental and external bodily injury.'

The court of appeals held that the facts justified the submission of the case to a jury. The case of Feeter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459, 97 Am.St.Rep. 560, was cited as authority. In its brief appellant says of the Fetter case, 'The principle is correct but it does not apply because here there was another 'independent force.' That independent force was tuberculosis. It was not only an independent force, it was a pre-existing force.'

In the Fetter case the insured fell and ruptured a kidney. The rupture was made possible because of a cancerous condition of the kidney. It was held that the insurance company was liable under a clause similar to the double...