Opinion
No. 21631.
March 3, 1952.
APPEAL FROM THE CIRCUIT COURT, RAY COUNTY, JAMES S. ROONEY, J.
Lathrop, Woodson, Righter, Blackwell Parker and Horace F. Blackwell, Jr., Kansas City, for appellant.
Cross Cross, Lathrop, Harry A. Hall, Kansas City, Wilson D. Hill, Richmond, for respondents.
This is an appeal by defendant from a judgment against it in favor of plaintiffs in the sum of $5,925, pursuant to a jury verdict. The judgment represents a $5,000 double indemnity benefit for accidental death under an insurance policy on the life of Owen M. Stafford, who died October 16, 1947, and interest thereon from that date. The straight life proceeds were paid. At the time of his death Mr. Stafford was 69 years of age. The question here involved is whether his death was caused by accident or disease. Plaintiffs claim that insured "fell from a second story window of the Vineyard Park Hospital in Kansas City, Missouri, on October 16, 1947."
On October 9, 1922, defendant issued its $5,000 policy on Mr. Stafford's life, containing disability and double indemnity benefits. Plaintiff, Emma V. Stafford, was named as the beneficiary in the policy and assigned her claim as such to plaintiff, Frank X. Donovan, a resident of New York. However, the case was prosecuted in the name of both plaintiffs. The policy provides that defendant will pay an additional $5,000 to the beneficiary upon receipt of due proof that the insured's death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental causes and that double indemnity will not be paid if the insured's death resulted from physical or mental infirmity or directly or indirectly from illness or disease of any kind.
Insured had been a farmer near Cameron, Missouri, and on July 20, 1937, sustained a compound fracture of the skull when struck by the lever of a combine. He was, as a result, thereafter totally and permanently disabled and was continuously paid disability benefits under his insurance policy until his death. The skull fracture had caused the bones to be "jammed into the brain tissue and the cells damaged." Insured developed serious heart and circulatory diseases. As early as February, 1939, his blood pressure was high, his heart was thereby enlarged, and his circulation was impaired. Throughout the years, he consulted and was treated by Dr. John G. Sheldon at the Vineyard Park Hospital in Kansas City, Missouri, for this condition. His disease grew more pronounced as time went on and culminated in a serious coronary occlusion in April, 1946, and a partial stroke of paralysis in August, 1946. He had also developed generalized arteriosclerosis which had grown progressively worse. This was the cause of the coronary occlusion in April, 1946, for which he was hospitalized in Vineyard Park Hospital for a week or two. At that time his blood pressure was high and his heart was enlarged. His heart never returned to normal, and he was thereafter treated intermittently by Dr. Sheldon for his high blood pressure.
Dr. Ira D. Kimes of Cameron, a witness for defendant, treated insured from August, 1946, to October, 1947. Upon his first examination Dr. Kimes found that insured had suffered a slight paralytic stroke. His blood pressure was around 230, which is very high. Insured's heart was enlarged and had a grade 2 systolic murmur, which means a "valvular defect to one of the heart valves." Insured had swelling of the ankles, which is a common manifestation of an advanced state of heart disease. Dr. Kimes testified that on four or five occasions he removed fluid from insured's chest; that fluid on the chest is a common manifestation of advanced heart disease; that insured was in a very serious condition, having generalized arteriosclerosis and marked cerebral sclerosis; was "very mentally confused" during the last year of his life and this was caused by the "arteriosclerosis which existed in the cerebral arteries." Dr. Kimes stated that shock is a common manifestation of occlusion as likewise is unconsciousness; that due to insured's condition, he was apt to have a fatal occlusion at any time, entirely unrelated to any effort or exertion on his part. Dr. Kimes recommended that insured go to the Thompson, Brumm and Knepper Clinic in St. Joseph for observation.
Dr. Louis G. Neudorff, also a witness for defendant, was associated with the Thompson, Brumm, Knepper Clinic and examined insured there on December 30, 1946. He testified that he found insured to be suffering from "generalized arteriosclerosis and arteriosclerotic heart disease, with cardiac enlargement;" that insured was "an older man than his sixty-eight years, he was seventy-five years of age, his arteries; his body." Insured remained in that clinic until January 8, 1947.
Insured entered the Vineyard Park Hospital in Kansas City on October 10, 1947. It was not disputed that, during the six days insured was in the hospital prior to his death, and for some months prior thereto, he was mentally incompetent. He was a very restless patient. Before his last hospital confinement, he had roamed in and out of his home in Cameron at all hours of the day and night, dressed and undressed. He did the same thing in the hospital. He constantly walked around in the halls, upstairs and downstairs, day and night, dressed and undressed, and on one occasion, he even left the hospital building. Sedatives had no appreciable effect on him.
Insured occupied the northwest room on the second floor of the hospital. The north side of the hospital building appears in the photograph identified as Exhibit 1. It shows two windows in insured's room and in the east window a screen. Immediately below this window are concrete steps leading from a porch down to a concrete sidewalk. The distance from the window to the sidewalk was about 16 feet. Around the edge of the porch floor are iron railings about four feet high and these also appear along the edges of the steps leading down to the sidewalk. About two feet below and a few inches east of the base of the east window is the roof of the porch. About 3:00 a. m. on October 16, 1947, insured was observed in his bed in his room by the night nurse, Allene Brown. He was quiet and undressed. About 4:00 a. m. the superintendent, Eva Konzack, who slept in the first floor room immediately beneath insured's room, heard glass breaking. She left her room, walked south down the first floor corridor, found Mrs. Brown in the chart room on the first floor, climbed the steps to the second floor with Mrs. Brown, and went with her north along the second floor corridor to insured's room in the northwest corner. They found the east window on the north side raised, the screen unhooked, and insured gone. One said the light was burning; the other said it was not. They returned to the first floor, left the building through the west door, came around to the north side of the building and found insured sitting up on the step of the sidewalk some feet north of the north side of the building. They procured a wheelchair, carried him into the first floor room, and called Dr. Sheldon. Insured had his suit coat and pants on over his pajamas. He was unconscious and said nothing intelligible. Mrs. Brown observed a trivial spot of blood on his face. Mrs. Konzack saw a slight mark on his cheek, but neither nurse saw any other evidence of bodily injury. They saw no blood elsewhere, and no broken glass or window or screen.
Plaintiffs offered Dr. Sheldon as their only medical witness. He testified that he reached the hospital and examined insured about 5:00 a.m. Insured was then unconscious and had "an abrasion on his right knee and he had a bump on his lip" and possibly a "slight abrasion" on his head. These abrasions were "of a minor and trivial nature"; "not enough to cause his death," and there was no other evidence of bodily injury. He said that insured was then in shock, his heart action was very irregular and rapid and about 8:00 a.m. he suffered a coronary occlusion resulting in his death about 8:30 a. m. He assumed Stafford fell or jumped out the window. He testified that shock results from injury. He also said that shock is a common characteristic of an occlusion and that "often unconsciousness results from a severe occlusion"; that an occlusion comes on entirely unrelated to physical effort. In fact, he said, "the fatal one is apt to come while you sleep." Dr. Sheldon was asked: "In your opinion, as his doctor, tell the jury whether or not Mr. Stafford would have died as he did if it had not been for the fall and the ensuing shock?" A. We can't say that.
"Q. Give me your best judgment based upon your familiarity with him and the conditions that you saw. A. That's repeating what I said before. My opinion, on the evening of the 15th was that I had no business to suspect, no reason to expect an immediate heart attack, and that I think that the fall was a most contributing factor of his death early on the 16th. That's as far as I can go on it."
Plaintiff, (Eva Stafford) her son and her daughter testified that the pants Stafford wore when found on the sidewalk bore marks of white paint and a six-inch three cornered tear and that the coat Stafford wore when found had blood stains on its front. The son and daughter also testified that, about three hours after Stafford's death, they saw a broken flower vase on the sidewalk underneath his window, and that they had previously seen this vase on a window still in his room.
Plaintiffs offered as a witness Thomas Davis, a deputy coroner of Jackson County, who testified that, when he observed the body at the hospital about 11:15 a. m. on October 16, he saw no evidence of bodily injury other than a bruise on the left side of the forehead at the hairline the size of a silver dollar. He investigated but saw nothing of significance in Stafford's room or in or under his window, either inside or out. He attended the autopsy and saw that Stafford had a very bad and enlarged heart.
George Trammel, who was employed by a funeral director in Cameron in October, 1947, was present at the autopsy. Called by plaintiffs he testified that he observed two heavy bruises on insured's chest and an abrasion over his left eye. This witness in a written statement dated December 12, 1947, stated: "Examination of Mr. Stafford's body failed to disclose that he suffered any injury of consequence from his alleged fall, and the only evidence of trauma was slight bruise on his right cheek. I do not recall any evidence of bruises or other marks about the head." When asked about this statement he said: "I am not going to say whether it is true or not, because I do not know. At that time I probably made that statement."
Dr. James C. Walker, Coroner of Jackson County, testified for defendant. He performed an autopsy on Stafford's body the day after his death. He also signed the death certificate, which gave the immediate cause of death as "coronary occlusion" due to "hypertrophied heart." His findings at the autopsy were: No evidence of any bodily injury to or in the region of the chest, heart, or lungs, no evidence of any bodily injury which could account for death, no evidence that Stafford had fallen from a second story window to a concrete sidewalk, an enlarged heart to the extent of 450 grams above normal caused by high blood pressure over a long period of time, scar tissue over the left apex of the heart, swollen left knee, the end point of arteriosclerosis in the coronary artery and throughout the arterial system which had existed a long time, and an occlusion in the coronary artery. He testified that the arteriosclerosis had developed to the extent that the coronary artery was thereby blocked, causing the clotting and stopping of the blood, and that this blocking was due to natural changes in the artery which, by reason of the arteriosclerosis, had become so narrow that the blood was unable to flow.
The proof of death, executed by plaintiff, Emma Stafford, on October 24, 1947, recited cause of insured's death to be a "stroke," and "duration of last illness 14 months," and "illness dated back twelve years."
Defendant offered, and the trial court refused, its motion for a directed verdict at the close of all the evidence. As stated the jury's verdict went against defendant.
Defendant first contends that there is no substantial evidence that insured fell from the window. Plaintiffs evidence that insured fell was entirely circumstantial. Defendant says the circumstances of the case are completely equivocal and that they are no more consistent with a fall from a window than from a walk out the door. Probably as reasonable an explanation as any as to what occurred is that insured climbed from the window to the porch roof and then lowered himself to the iron railing which extended along the edge of the porch floor. However, if the injuries insured sustained were not the sole proximate cause of his death then the manner in which they were received is unimportant.
Is there any substantial evidence in this record that the alleged fall was the sole proximate cause of insured's death? The burden of proof was upon plaintiffs to show this, as the cause of death cannot be left to conjecture. Freeman v. Loyal Protective Ins. Co., 196 Mo.App. 383, 195 S.W. 545.
It is undisputed that insured was suffering from a seriously diseased condition of the heart and arteries. All that plaintiffs evidence shows is that the fall was a "contributing factor" of the death. And the utmost that can be said under the evidence in this case is that the disease and the fall were concurring, efficient and proximate causes in producing the death.
This court in Propst v. Capital Mut. Ass'n, 233 Mo.App. 612, 124 S.W.2d 515, 522, citing Couch Cyc. of Ins. Law, p. 4013, said: "If the disease, if any, did not contribute to the loss of the eye or if the disease, if any, was the result of the accident, defendant would be liable, but if the disease, if any, was present and it cooperated with the accident in bringing about the loss of the eye, and was the proximate cause thereof, the accident cannot be considered as the sole cause, or as the cause independent of all other causes."
No case in Missouri runs counter to the above holding, and the facts in the instant case come squarely within the part we italicized.
Plaintiffs rely upon the leading case of Fetter v. Fidelity Casualty Co., 174 Mo. 256, 73 S.W. 592, 595, 61 B.R.A. 459, 97 Am.St. Rep. 560, but it does not aid them. In that case there was "no question but that the fall of the insured against the table, striking his side heavily against its edge, was accidental; that it produced the rupture of the kidney which caused the hemorrhage which caused his death."
Plaintiffs also cite the cases of Young v. New York Life Ins. Co., Mo.App., 221 S.W.2d 843 and Hooper v. Standard Life Accident Ins. Co., 166 Mo.App. 209, 148 S.W. 116, 118. The facts in those cases distinguish them from the instant case. In the Young case the insured fell from a ladder breaking 8 of his ribs. The broken ribs caused pneumonia which in turn activated a latent tubercular condition. In the Hooper case "according to the evidence for plaintiff, if the accident of his falling had not happened, he still would not have been stricken with apoplexy."
In the case at bar it is admitted that the cause of insured's death was an occlusion of the coronary artery. Dr. Sheldon, plaintiffs' only medical witness, testified that the shock "wasn't severe enough to kill him," and that the abrasions were "not enough to kill him." This question was put to Dr. Sheldon: "This coronary occlusion, and your diagnosis of this occlusion is perfectly consistent with the condition in which you'd found Mr. Stafford some years prior to his death, was it not?" His answer was, "yes, we think it was rather not unusual that he get a second attack." He also stated that a fatal occlusion "is apt to come while you sleep," entirely unrelated to effort or exertion. Finally, he said: "We can't say" that insured would have died when he did had he not fallen. This can only mean that he could not say whether insured would have lived longer but for the fall. If he could not say but for the accident death would not have occurred when it did, plaintiffs made no case. It leaves the question to speculation and conjecture.
What was said by this court in Christianson v. Metropolitan Life Ins. Co., Mo. App., 102 S.W.2d 682, 685 is applicable here. "The plaintiff, of course, must prove his case. Where there is presented two or more causes that could reasonably result in death and but one is covered by a contract of insurance, the fact that the cause within the coverage might or could produce death is not sufficient to sustain a conclusion that it did cause the death."
In our opinion, plaintiffs failed to sustain the burden of proof and defendant's motion for a directed verdict should have been sustained.
The judgment is reversed.
All concur.