Merkel v. Railway Mail Assn.

226 S.W. 299, 205 Mo. App. 484, 1920 Mo. App. LEXIS 128

• Court: Missouri Court of Appeals
• Decided: November 3, 1920
• Status: Published

Opinion

BECKER., J.

This is an action brought by plaintiff ‘against defendant in the circuit court of the city of St. Louis, to recover under the terms of an insurance policy issued to her husband, Henry J. Merkel.

The trial resulted in a judgment for the plaintiff, for a total sum of $4,938 — $800 of this amount being for damages and attorney’s fees.

It appears that the plaintiff, Azzie Merkel, was the widow of the deceased, Henry J. Merkel, who, preceding his death, was á railway mail clerk in the service of the government; that on June 15, 1916, he was in perfect health and left the city on that date about three o’clock in the course of his employment; that he traveled between St. Louis and Nashville; that when he returned on the 17th of June following, he was complaining of his stomach.

His wife testified that she made an examination and found his stomach was black and blue with bruises all across the front, that he went to work again on the 18th; that he was due back on the 20th; but came back on the 19th; that when he came home he was screaming with pain and that she called Dr. Wolfert and Dr. Hertel; that he was taken to the hospital, where he died on the 21st; that the deceased was twenty-nine years old and weighed about 190 pounds, and was in good health prior to his last illness.

Dr. Hertel testified that he had known the deceased all his life; that prior to June, 1916, his health was peirfect; that he was called to see him about the 20th of June, 1916, and that he found him suffering with peritonitis ; that his abdomen was swollen, his pulse about 120 and his skin moist and clammy; that he made an examination of his stomach and sent him to the hospital; that when he opened the abdomen it contained a large quantity of serum and pus, bowels over whole region of abdomen swollen, cyanotic and in places showing beginning degeneration. He stated this condition could be caused by a strangulated bowel; a blood clot or interdisposition; but that he found none of these conditions present, and when asked the question, ‘ ‘ Could that condition that you found there be caused by a blow on the stomach?” he answered, “That is the most fre-. quent cause of it;” that this condition was dúe to injury; that the mark upon the abdomen was about one-hálf inch wide and three or four inches long, and was caused from external violence. Upon cross-examination he stated that he made out the death certificate, omitting to say anything about accidental causes; that he was advised to do so by the coroner, Dr. Padberg, in order to eliminate complications, and that he had several cases where they had put the diagnosis in this way, or as he saw fit, on account of the relations of the family, standing, etc.

Dr. Wolfert testified, in answer to a hypothetical, question, that Merkel died from general peritonitis, or blood poisoning of the whole stomach, and that this could not have been caused by anything but a blow from the outside.

The testimony would tend to show further that this condition of the stomach did not originate in the region of the appendix, but had spread to that portion of the abdomen.-

The plaintiff offered further testimony - as to a reasonable amount for attorney’s fees in bringing suit, etc.

Defendant’s answer was a general denial, and at the close of plaintiff’s evidence, defendant offered a demurrer which was by the court overruled. Defendant offered no testimony.

I. Appellant here seriously contends that from the record before us it clearly appears that the jury could not arrive at a verdict favorable to plaintiff except in violation of the rule that forbids the predicating of one inference upon another inference. We have gone over all of the authorities cited in support of this contention and have most carefully considered the able argument set up in support of the point here sought to be made and after mature consideration thereof have come to the conclusion that the point is without merit.

The record discloses that plaintiff herself testified that the insured was twenty-nine years old, five feet ten inches in height, and weighed about 190 pounds, and that on the 15th day of June, 1916 was in perfect health. In this statement she is corroborated by another witness, a physician who had known the insured nearly all of his life. Plaintiff further testified that she next saw the insured on the 17th day of June when the insured, who was employed in the capacity of a railroad mail clerk, returned from his run to Nashville, Tennessee ; that he then complained of his stomach and upon examination plaintiff found “his stomach was black and blue; bruises all across the front <of his stomach . . . from his stomach on down into his bowels.” (Italics ours.)

This testimony in itself is evidence of external violence. And on this point the jury had in addition the testimony of an expert witness to the effect that the black and blue marks could not have been caused by anything except external violence.

In light of this testimony we are of the opinion and so hold that the jury had before them testimony as to facts which, if they believed, were evidences in themselves that the deceased suffered external violence, which being true, it follows that in order for the jury to arrive at the conclusion that the deceased suffered external violence it was not necessary for them to predicate such finding upon an inference.

It was then within the province of the jury, it having been shown by competent testimony that the death of the deceased was due to general peritonitis, and further testimony that general peritonitis may result from external violence, to draw the inference that the general peritonitis was in point of fact caused by external violence. Up to this point there is then no violation of the rule that you cannot predicate a verdict upon an inference drawn from another inference, that is, piling inference upon inference.

Now, though the jury could infer that the deceased came to his death from general peritonitis caused by an external blow, there would still be one essential link missing to complete the claim of proof necessary to predicate a verdict favorable to plaintiff, namely, that the external blow which caused the peritonitis was accudental and not self-inflicted. Absent any testimony whatsoever on this subject, the missing link is supplied by a presumption of law, to-wit, that the insured did not voluntarily inflict an injury upon himself. If we are correct in our view that there is such a presumption of law, then the result arrived at by the jury in the instant case is arrived at without piling inference upon inference in violation of the rule.

There has been some confusion due to the inaccurate use- of the words, “presumption and inference,” which in some instances has left the impression that presumption and inference are synonymous, whereas these words have distinct and separate meanings. The word presumption in the strict legal sense “should be applied only to a presumption af law,” and as' such may be defined as “the deduction which the law expressly directs to be made from particular facts,” whereas inference as distinguished from presumption of law is “a deduction which may be made from any facts'legally proved.” “The difference is that a presumption is a mandatory deduction, while an inference is a permissible deduction which the reason of the jury makes without an express instruction of law to that effect.” [1 Jones on Evidence, 59.]

“Presumptions of law are usually founded upon reasons of public policy, social convenience and safety which are warranted by legal experience of courts in administering justice. The court must always instruct the jury as to the force and effect of legal presumptions. Presumtions of fact must always be drawn by a jury.” [1 G-reenleaf, Evidence, 107, 144.]

We are therefore of the opinion and so hold that under the record in this case, the jury predicating their finding upon competent testimony as to the facts and circumstances in the case and the inference which they could properly draw from such testimony, and taking into consideration the presumption of law above adverted to, could arrive at a verdict favorable to plaintiff without predicating an inference upon another infers ence.

II. The point raised that the learned trial court erred in allowing plaintiff’s expert witnesses to testify that the general peritonitis from which the insured suffered was due to a blow, over defendant’s objection that such testimony invaded the province of the jury, is well taken.

One of the issues in the case was whether the general peritonitis with which, according to the physician who testified for plaintiff, the deceased suffered and was the cause of his death, was caused by external violence, and to permit a medical expert, over proper objection, to testify that the general peritonitis was due to an injury, is permitting such witness to “substitute his reasoning and conclusions for the reasoning and conclusions of the jury upon an issue before the triers of fact.” [Deiner v. Sutermeister, 266 Mo. 505, l. c. 521, 178 S. W. 757.]

In Glasgow v. St. Ry. Co., 191 Mo. 347, 89 S. W. 915, the main question in the case was whether plaintiff’s condition was the result of the alleged accident. Expert witnesses for plaintiff were permitted to testify, over timely objections, as to what was the cause that produced the plaintiff’s affliction, and it was held on appeal that this constituted reversible error. In the course of the opinion it is said: “It was competent for them in giving their opinions, to speak of that which they knew from their scientific learning and experience; it was not competent for them to' draw conclusions of fact from the evidence in the case, yet that is what they did. If the jury gave credit to the testimony of the physicians the verdict paraphrased would say, ‘We the jury find that whilst the plaintiff’s affliction might have resulted from many causes, yet the doctors have said it was the result of the fall, and we therefore so find.’ The court in giving its approval to this testimony said to the jury, in effect, ‘Whilst it is your duty to ascertain from all the evidence in the case whether or not the plaintiff’s disease was produced by the fall he claims to have received, and whilst these learned gentlemen have said there are many causes that produce such disease, yet in their opinion the plaintiff’s trouble was produced by a fall; therefore, if you think these men are worthy of credit, you may base your verdict on their opinion, and find that there was a fall and that it produced this result.’ It in effect authorized the jury to adopt the conclusion drawn by the experts from the evidence, rather than to draw their own conclusions.” . . . “But the testimony of these expert witnesses went to establish the fact of the alleged fall, which was not a fact they learned from the medical books. Thus the weight of their testimony went into the scales on the question of whether or not there was an accident.” [Castanie v. United Rys. Co., 249 Mo. 192, 155 S. W. 38; Atkinson v. School of Osteopathy, 240 Mo. 338, l. c. 355, 144 S. W. 816; Smart v. Kansas City, 208 Mo. 162, l. c. 202, 105 S. W. 709; Taylor v. Ry. Co., 185 Mo. 239, l. c. 256, 84 S. W. 873, and cases cited.]

Under the facts in this case we are therefore of the opinion and so hold that the admission of this testimony was prejudicial error.

III. This brings us to the last objection urged by appellant, namely, that there was no evidence of any vexatious delay, and that the court erred in submitting this question to the jury.

Section 7068, Revised'Statutes of Missouri, 1909, provides for a recovery of such damages, “if it appear from the evidence that such company had vexatiously refused to pay such loss. ” It is true this is a question for the jury, if there is any substantial testimony upon which such a finding may be based. This is a matter to be determined by the jury, from all the facts and circumstances in the case, and it is not necessary that affirmative proof of vexatious delay be offered. However, there must be some testimony from which reasonable inferences may be drawn, showing a vexatious delay.

In the case at bar the attending physician, Dr. Hertel, who was plaintiff’s witness in the case, stated that in the death certificate made out by him at the time of the death of deceased, he gave appendicitis as the cause of death. He was in a position to know more about the proximate cause of the death of deceased than anyone else, and the defendant would have a right to rely upon such statements, especially in view of all the other facts in this ease, and a legitimate and proper right to defend against an action to recover the amount named in, this policy.

As was said in Non-Royalty Shoe Co. v. Phoenix Assurance Co. (Mo.), 210 S. W. 37, l. c. 43, “It is from the very nature of the case, and from the protean form which the facts of the case assume, difficult, if not impossible, to frame, any general rule for use in determining when a refusal to pay is vexatious and when it is not.” There must be some substantial evidence tending to show that such refusal was wilful and without reasonable cause. We do not find such in this case and we think the action of the court in submitting this question to the jury was error. [Non-Royalty Shoe Co. v. Phoenix Assurance Co., supra, and cases cited.]

It follows from what we have said above that the judgment is reversed and the cause remanded.

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