Wright v. Order of United Commercial Travelers of America

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 benficiary 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 — 460 — 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. Imediately 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 — 461 — 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 — 462 — 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 is said that accidental means are those which produce effects which are not the natural and probable consequences of the act. In other words,£ £ An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably antici — 463 — pated from the use of such means, an effect which the actor did not intend to produce and which he cannot he charged with the design of producing, is produced by accidental means.” [Young v. Railway Mail Ass’n, 126 Mo. App. 325, 342, 103 S. W. 557; Beile v. Travelers’ Protective Ass’n, 155 Mo. App. 629, 135 S. W. 497; 4 Cooley’s Briefs on Insurance, 3156, 3157.] But here there is no accident shown by the legitimate evidence introduced, and there must be an accident revealed before a recovery may be allowed as for an injury resulting from accident. [See Laessig v. Travelers’ Protective Ass’n, 169 Mo. 272, 69 S. W. 469.] But it is argued that it is competent to receive expert evidence in matters of this character, and the several witnesses for plaintiff attribute the death of the insured to the rupture of an artery and this will suffice, for obviously it was not anticipated as a result of the act of driving a handsaw which he was performing at the time. But though the witnesses so say, they each and all testify as well that they had no positive informa-, tion touching the matter of a ruptured artery. This being true, it is essential, then, to find through inference alone that the insured suffered a ruptured artery. This inference by which the ruptured artery is said to be ascertained is based upon the fact of the pallid and congested condition appearing about the face and head of the insured, the sudden death which overcame him, and the temporary strain he underwent in the labored effort of driving the saw. But although it be conceded that deceased came to his death from a ruptured artery, this will not suffice to authorize a recovery as for accident, because such frequently occurs, as other evidence in the case reveals, from natural causes alone and aside from accident entirely. Then, too, if the rupture of the artery resulted from one of two causes, one of which is within the terms of the policy—that is, accidental means—and the other not—that is, a natural cause—it is incumbent on — 464 — the plaintiff to show to a reasonable certainty by competent evidence that the cause stipulated against—in this case, the accident—was at least an active agent in producing such result. [Warner v. St. Louis, M. R. R. Co., 178 Mo. 125, 134, 77 S. W. 67; Goodes v. Order of United Com. Trav. of America, 174 Mo. App. 330, 156 S. W. 995.] But it is said, though such be true, it is to be inferred on the facts and circumstances and from the opinion of the expert witnesses that the artery in the instant case was ruptured as a result of the strain incident to the work being performed by insured and, therefore, it occurred through accidental means. But this argument goes beyond the facts shown in the direct evidence and reckons with inference on inference as thoug'h such were competent. Such a mode of arriving at a conclusion of fact, it is said, is inadmissible. No inference of fact may be reliably drawn from premises which are so highly uncertain. It is not to be questioned that “In the law of evidence, opinion is an inference or conclusion drawn by a witness from facts some of which are known to him and others assumed, or drawn from facts which, though lending probability to the inference, do-not evolve it by a process of absolutely necessary reasoning.” [See Black’s Law Dictionary.] Therefore, it is obvious that, in order to establish a right to recover, sufficient facts must be detailed in evidence to afford legitimate inferences, and it will not suffice to establish a fact in the case by drawing an inference from other facts and then undertake to establish still another fact by utilizing the fact first established, through inference alone, as a basis for a further inference of fact. In other words, as is frequently said, presumption may not be raised upon other presumptions nor inference piled upon other inferences, in support of a verdict. [United States v. Ross, 92 U. S. 281; Hamilton v. Kansas City Southern R. Co., 250 Mo. 714, 157 S. W. 622; Glick v. Kansas City, etc. R. — 465 — Co., 57 Mo. App. 97, 104; Richmond v. Aiken, 25 Vt. 324; McAleer v. McMurray, 58 Pa. St. 126; 1 Rice on Evidence, section 34; Lawson’s Presumptive Evidence, Rule 118, p. 652; Whitesides v. Chicago, B. & Q. R. Co., 186 Mo. App. 608, 172 S. W. 467.] In order to find that the insured came to his death through accidental means, the jury essentially employed inference, for there is no direct evidence of the fact that hesuffered a ruptured artery, and having inferred this much, it inferred, too, by resting another inference thereon, that such ruptured artery was occasioned through accidental means rather than from natural causes by the extraordinary blood pressure incident to the strain under which William N. Wright labored at the time. Although the first inference was a legitimate one, the second was not, for it was not based on competent matter of fact. Such being true, the verdict rests upon mere conjecture rather than on matter of fact deduced from the evidence. The judgment should, therefore, be reversed. It is so ordered. Reynolds, P. J., and Allen, J., concur.