Young v. New York Life Ins. Co.

• Decision Date: 07 March 1949
• Docket Number: No. 21122.,21122.
• Citation: 221 S.W.2d 843
• Parties: YOUNG v. NEW YORK LIFE INS. CO.
• Court: Missouri Court of Appeals

221 S.W.2d 843

YOUNG v. NEW YORK LIFE INS. CO.

No. 21122.

Kansas City Court of Appeals. Missouri.

March 7, 1949.

Appeal from Circuit Court, Carroll County; James S. Rooney, Judge.

Action by Pauline P. Young against New York Life Insurance Company for double indemnity on a life insurance policy. From a judgment for the plaintiff, defendant appeals.

Reversed and cause remanded with directions.

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.

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

CAVE, Presiding Judge.

This is an appeal from a judgment in favor of plaintiff for $1,678 entered pursuant to verdict in an action for double indemnity for alleged accidental death under a life insurance policy which included accidental death benefits. The verdict and judgment consist of $1,000 principal sum, $500 attorneys' fees, $100 penalty for vexatious refusal to pay, and $78 interest. The face amount of the policy was paid without prejudice prior to suit. The only controversy is with respect to the double indemnity.

Plaintiff is the widow of Roscoe D. Young, deceased, and beneficiary in the policy. The case was tried on plaintiff's amended petition and defendant's answer. These pleadings allege and deny that Roscoe D. Young's death resulted from bodily injuries effected solely through external, violent and accidental means; and that due proof of accidental death was furnished.

At the close of plaintiff's evidence and again at the close of all the evidence defendant moved for directed verdict, which motions were overruled. The only question on the merits on appeal is whether insured's death resulted from accidental injuries or whether it resulted from a preexisting tuberculosis and thus came within the exclusion clause of the double indemnity agreement.

The material part of the double indemnity provision reads:

"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 injuries 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."

We have omitted exclusions (a), (b), (c), (d), (e) and (f) because not material, and have italicized certain words and phrases of the above quotation because of the emphasis placed thereon by defendant.

Certain general facts seem to be uncontroverted. They are: On May 23, 1946, Roscoe Young was engaged in washing the windows in his home at Carrollton, Missouri. He placed a ladder against the west side extension of the garage, which was in the basement of his home, and climbed onto the top of the protruding part of the garage for the purpose of cleaning the windows located above the roof of the garage entrance. While on this roof he leaned against the ladder, which slipped from its position, and he fell to the cement driveway 11 to 12 feet below. He was found in a semi-conscious condition with a scalp wound, which bled profusely, and 8 broken ribs. Dr. Cowherd, the family physician, was called to the scene. He took Mr. Young to his office and treated the scalp wound and taped the broken ribs, after which he took Young to his home and he was immediately put to bed. Two days thereafter traumatic pneumonia developed which continued for 18 or 19 days, after which time Mr. Young was able to be up. Dr. Cowherd testified that "at that time his fever was practically normal but from then on the fever began to gradually rise. The cough was pretty severe and a great deal of pain in that side when he coughed and it was just a gradual stepping up of accelerated symptoms of tuberculosis from then on." On July 17 Mr. Young was moved to the Veterans' Hospital at Excelsior Springs, and died on the following August 16, within 90 days of the date of his injury.

Defendant's first assignment is that the court erred in overruling its motion for a directed verdict at the close of all the evidence "for the reason that the undisputed evidence shows the insured's death resulted not solely from accidental means but from infirmity of body, illness and disease, and a bacterial infection within the meaning of the policy." This assignment requires a more detailed statement of the evidence, and in the most favorable light to plaintiff.

Mr. Young was about 51 years of age at the time of his death. Several lay witnesses, who were friends and business associates, testified that prior to the accident he had a cheerful disposition, was quite active in civic and business affairs of the community, and appeared to be in excellent health. He had been employed by the Sinclair Refining Company as a diesal engineer at its pumping station in Carrollton for 29 years, and its records show that he had not missed a day of work because of illness during that time.

Dr. Cowherd, the family physician, testified that within two days after the accident Mr. Young developed traumatic pneumonia, as a result of the accident, and that it was 18 or 19 days before he was out of bed; that, in his opinion, Young had a latent or inactive tubercular condition prior to the accident and that the fall, resulting in eight broken ribs, caused the pneumonia; that the pneumonia generated or activated his latent tubercular condition, and that tuberculosis caused his death. He stated that, according to medical authorities, a majority of people have a tubercular infection sometime in their life and that nature will wall off the infection, and most of them will go through life without knowing they have any tubercular bacilli and without the tuberculosis ever becoming active; that "pneumonia is one of the greatest offenders we have in activating miliary tuberculosis."

Plaintiff also called as a witness Dr. Altomare, who was a physician at the Veterans' Hospital at Excelsior Springs and had charge of the tubercular ward. He testified that Mr. Young was admitted to the hospital on July 17 and was transferred to his ward on the following day, and that the diagnosis of Mr. Young's condition at that time was, "pulmonary tuberculosis, far advanced, active * * *"; that Mr. Young declined rapidly and died of tuberculosis on August 16. He further testified that "traumatic pneumonia may lower a man's resistance and cause a flare-up of an old, latent tuberculosis lesion."

Dr. Altmare also testified for the defendant, and stated that the Veterans' Administration Hospital records at Excelsior Springs, which were offered in evidence, show that in 1940 Young was a patient at the hospital for a few days and that he was discharged "with a diagnosis of tuberculosis, pulmonary, chronic, right apex, activity undetermined." He stated the reason activity was undetermined at that time was because Young did not remain in the hospital long enough to establish whether the lesion was active. He gave it as his opinion, from an examination of the 1940 X-ray pictures, that they were "very suspicious of an active lesion; * * * I would need further study at that particular time in order to arrive at a conclusive diagnosis as to activity." He treated Young at the Veterans' Hospital from the time he was admitted until his death about one month later. The patient gave a history of having been recently examined by Dr. Buckingham of Kansas City who X-rayed his chest and informed him (Young) that he had bilateral pulmonary tuberculosis. Dr. Altomare also stated that the X-rays taken of Young on July 18, 1946, at the Veterans' Hospital showed evidence "of a far advanced, bilateral fibrosis type disease, disseminated throughout the entire right lung and involving about 80% of the left lung * * *." He said that in his opinion it was a chronic type of disease, with an old chronic process going on which had resulted in a deviation of the trachea; "I would say that it's a process that's been going on for years." He stated that Young's sputum was highly positive for tubercular bacilli. After he had examined both the 1940 and 1946 X-ray plates, the doctor was asked whether in his opinion the disease was active and progressive over that period of time and stated, "in my opinion, it was an active, progressive disease"; that, in his opinion, the condition found in the insured's lungs on July 18 could not have developed and did not develop subsequent to May 23, the date of the accident.

The death certificate, signed by Dr. Tapp of the Veterans' Hospital, stated the immediate cause of death was "tuberculosis, pulmonary, chronic, far advanced, active."

After proof of death had been made, defendant refused payment of double indemnity by letter dated October 14, 1946, wherein it is stated:

"From the information we have been able to obtain, it appears that the death of the insured did not result directly and independently of all other causes from bodily injury effected solely through, external, violent and accidental means; it appears that death resulted within the limitations of the exceptions that `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 .....' Our information is that the death of the insured was due to far advanced, chronic, pulmonary Tuberculosis."

We have merely stated the substance of the medical testimony because no question is raised concerning the qualifications of either doctor, or the facts forming the basis for their opinions and conclusions. The weight of the evidence is for the jury. The evidence viewed in the most favorable light to plaintiff is to the...