*1 1058 issues, responds to all of certainty
ular form if with verdict record, whole meaning clear from the jury and the can be made actually jury on judgment be based what and the is shown to 420, W. Hines, App. 299 S. 207 Mo. found. 221.] [Goff upon an undis express contract based The action herein is on an un percentage commission that stands puted price upon sales to under the above state disputed. a stand In order for verdict greater A precise issue. correspond to the facts, the verdict should as to germane determination whether to the or lesser amount becomes Real Es responds the verdict to issue. not [Weisels-Gerhart App. 626, W. 150 Mo. S. Co., tate v. Pemberton Inv. Co. 353.] 131 concerned, duty to jury its determine Insofar as the law any, and under the due, under the issues of case amount if as to jury not concerned as the instructions. declared in damages or We conclude otherwise. whether this amount was termed “damages” m.&y if the surplusage be the term concluded so, is and, if not fatal responsive is to the issue same verdict “damages” ap even with the word judgment upon based the verdict Roberts, W. (2d) 107 S. therein. pearing [Kimberlin 24.] interest, separate finding of interest Where a verdict includes Milling Hay Co., & 243 W. necessary. v. National S. [Mueller 420.] conformity above, point law, with the as cited in consideration of upon 12, No. we have made a careful calculation based a consideration involved, commission, being tried, the the rate of of the issue amount May 1937, 14, verdict, per interest from date and our cent six ($1695.73) corresponds calculation that-the amount verdict shows entitled, plaintiffs are principal and interest for which amount plaintiffs. for' where verdict be requirements in this case meets the
We conclude verdict -oflaw. All
Judgment affirmed. concur.' Respondent, Roberts, v. Woodmen M. Accident Maude Appellant. (2d) S. W. 1053. 129 City Appeals. March Kansas Court 1939. *2 Milton Schwind appellant.
n DeanFrazier for respondent. beneficiary in
SPERRY, Roberts, below, an plaintiff C.—Mrs. policy Accident accident insurance issued Woodmen below, husband, the life her deceased. Suit was on now Judgment plaintiff for the and defendant death benefit. was for plaintiff The and de- appeals. parties will be referred herein ' n _ fendant. years prior to 'his from an Insured had two suffered enlarged spleen, grew pf ogressivély spleen which ailment worse. organ long, inches an about two one-half wide three inches covering capsule. upper quadrant in a or It lies in the left inclosed gal- It had increased to a size sufficient to fill a two of the abdomen.' May 19, be an exam- bucket on and could felt from external lon many forming been ination. Fluid had insured’s abdomen for necessary every his death. It to drain the fluid prior months complained of, quantities rang- days, just prior injury to the few quarts ing up to six would thus be removed. His condition was such from that, inevitably, he have died disease would course year months, probably within' one from the date that he weeks did *5 he at the in the he die; but would not died time and manner did injury for an hereinafter described. die but accidental May 1937, evening 19, accidentally in the of insured fell his On leg, causing left side and abdomen on a room and struck his table body, place his which slight a indentation on red. blow blood capsule spleen the and vessel the of ruptured a blood inside ac- minutes after rapidly so that a few collected therein within the of spleen the the size upper end of lump cident there a on the broke, permit- May 30, following, lump the grapefruit. a small On cavity, which the ting imprisoned escape the into abdominal blood n death. .caused de- and furnished immediately the death benefit Plaintiff claimed including the statement form, proof of loss in due fendant with De- as above attending physician, giving the cause of death stated. claim, sum paid plaintiff in full settlement of $300 fendant is on Her suit retains, took her release therefor. she now as to lia- dispute grounds there no for a tona were fide proofs fully its bility liability advised of ; that defendant was merely on ac- payment a death; payment that the $300 after policy of the here is for the balance count. The claim made crediting paid. the amount at evidence, offered
Defendant, urges that its. demurrer have set ease, have been sustained. close of the whole should We light most favor- in .the findings fact, based on the evidence out our plaintiff. able to dispute, then no ground for Iona If, fact, in there was no fide re alleged compromise, is an paid, back of the amount under
tender bringing for the claimed quired prior .to. suit remainder .under amount due less than the whole policy. payment In such case the plaintiff compromise contract no consideration for the furnishes the balance. paid and sue for the amount so was entitled credit (Mo. App.), Corporation v. Accident Assurance General [Biddlecom Yancey 103, l. 106; Mutual Insurance Associa 152 W. c. Central S. otherwise l. The rule is App.), (2d) 149, 77 S. W. c. (Mo. tion 154.] of a payment it settled good exists and is dispute where a faith sought it is and. where policy, than the whole of the thereafter sum less duress, or of grounds compromise settlement on to avoid the e Protectiv treaty. v. Travelers [Sheppard in the fraud Association court), yet reported; Wood America,.Docket (this No. 19266 15; 6,W. l. c. Mc City Telephone Company, 123 S. v. Kansas Home 216 W. l. c. Coy S. v. McMahon Construction 772.] .npt good faith dispute, determining whether .or tona-fide liability provisions policy actually existed, the factual compromise become knowledge time of the liability that defendant at: legal under the facts known If there was important. .actual consummated, there was the settlement was at the time to defendant ignorance support compromise; defendants’ consideration.to no pre or excuse. It will no consideration law furnish of. the' liability policy to its under its the law with reference sumed to know settlement, provided existed at the time of as the law provisions, Mutual Life knowledge of the facts. State As it had [Friedman (2d) 156, l. (Mo. App.), 108 S. W. c. Company surance 161.] *6 1064 governing defendant’s policy, the pertinent provisions of
liability, as follows: were violent, external through disability is effected “When such loss or causes. of all other entirely independent means and and accidental resulting,- . . . death liable for company “This shall not be disease, . . indirectly from . directly or wholly partially, full had induced defendant alleged compromise was At the time the surrounding loss, of all of the facts knowledge, through proofs the therein, attending physician by they being briefly death, the stated certificate, by as follows: plaintiff, over his This home. leg in his own spleen his on the table “Fell and struck a my opinion was spleen on the which lump a to form caused lump this dis- spleen. the Later hemorrhage capsule of- within hemorrhaged inside of his abdomen.” appeared he treatment been under stated that insured had Said certificate also years ; myeloid leukemia, for two later polcythemia, Splenomegalic hemorrhage “intra abdominal of death was that the immediate cause also leg.” details striking enlarged spleen on table Other due to regarding cause important fact appear therein. No additional liable Therefore, if brought at the trial. oiit death was policy pro- its facts and under under the above for the death benefit liability the release knowledge at the time visions, legal' of its it had signed. which, injury question that the accident caused There is no but It is not contended that condition turn, the death. caused by plaintiff’s fall; him. but it is shown health insured’s caused suffering from the en insured not been evidence that had medical injury from which have caused larged spleen the fall would not greatly for the swollen true for the reason that:but he died. This is so enlarged spleen of insured’s it would been condition by protected so other deeply the abdomen and well buried within .completely insulated from the effects tissues to have been as. blow received on the abdomen. by adopted Supreme falls the rule
We think this case within Casualty Company, W. l. Fidelity & 73 S. c. in Fetter v. Court 595, where it was said: naturally produce person in a of a injury might
“An health is the cause of his death he temperament or state of certain if. tempera- if his it, if he would not have’ died even died reason different; this is been so as well previous health had ment or -directly through the medium of disease induced when death comes immediately interrupts the vital injury injury as when processes.” kidney. table, rupturing of a against fell the corner
There insured kidney existing There awas cancerous condition of the and the rule apply made to on the that the accident was one which kidney would ruptured prediseased not have it not for its been T., condition. Order, App., 174 Mo. case Goodes U. C. *7 330, 339, l. policy exempting c. the St. Louis de Court considered liability directly “happening fendant’s for accidental death or indi rectly by bodily in consequence wholly part or in of disease or caused disease,” infirmities or an approved and the court instruction which liability fixed in in jury apoplexy the event the found that caused fall, to provided they sured that that the fall caused the should find and, 356, death English at l. c. the cases. the court discussed two first, liability policy provisions under similar held where insured was being fell epileptic fit, drowned, into a brook in an it while and was drowning, accident, said that he died from an that the and law did seek causes; other, the cause of in a fit and fell the insured suffered by in train, front of a it and was held that he met accidental death being by overrun the train. court, Rieger Company,
The St. Louis in v. Mutual Life Insurance 878, l. 110 (2d) provision exempting S. W. c. considered a liabil ity directly bodily if indirectly death “result or from or mental in ’’ firmity any provisions disease of sort. It was held such had accident, reference to the cause of not to its effect. solely directly In the ease at bar death from the and acci- resulted falling striking leg.
dent of his abdomen on the table The facts are unlike those in the Metropolitan case of Christianson v. Life (2d) 682, Insurance 102 S. W. this court held wherein that death could not have occurred from the accident alone but for the concurring effects of the disease of diabetes from which she then suff- previously analagous ered and which existed. This case is to that of Schepman v. Mutual Benefit Health & Accident Association where we striking held that the cause of death the was accidental of the head. evidence, light Since the in the most when viewed favorable to plaintiff, them, to discloses facts be we have stated the court properly ruled the demurrer.
There
no factual evidence whatever that
either contradicted
touching illness,
or added to the facts
accident and circumstances of
death, as same have been heretofore stated. The facts essential to
proof
a determination of the case were included in the
of loss which
by defendant,
testimony
introduced in evidence
of its
agent
proof
that he
such
of loss
him
“compro-
before
when he
being
disputed
only
There
no
dispute
mised”
claim.
fact but
law,
application
principle
there is no room for
of the
as to
de-
Light Co.,
in Sormm v. Laelede Gas
Instruction instructs the if it of insured. finds the disease contributed defendant, to the effect instruction stated the entire to, remotely, that if insured’s death was contributed however suffered, disease from which he and if death would not occurred at the time it if his and di- did occur it had not been for weakened condition, notwithstanding seased he the blow had received ruptured spleen, notivithstanding bursting capsule of the spleen, swelling therein, hematoma there then caused *8 grounds dispute compromised existed for a bona had been fide compromise, alone, recovery; regardless that, and which barred of compromise, any policy said defendant was not liable under its for primary right sum of the If it have the- because above facts. had theory against first submitted, jury above-mentioned found it on such matter submission and the is forever settled. The sole evidence support theory of sutíh was that of the medical witness above mentioned, jury may hypothetical ques- that the have noticed tion, asked, properly hypothesize facts, as did not all of the material only, evidence; judgment may and those as were in and their thereby. been influenced however, complained,
It is the instruction conflicts with the plaintiff plaintiff’s ignored instructions of in that instructions disease instructions, contributing as a of think plaintiff’s cause death. We correctly Casualty Company, Rieger state the supra; law. v. [Fetter Mutual Life This supra.] Insurance is true for the ad- ditional reason that the evidence of defendant established the cause independent any contributing disease, of of cause from with exception testimony of the above mentioned medical which was imperfectly hypothetical question. based on an stated Plaintiff’s ease was submitted under instructions on the consideration, view, which, proved by of failure of under our the- plaintiff of- But evidence defendant. also submitted an instruction finding fraud and duress of on without facts which requiring n establish fraud or duress. Under the circumstances the error was- not harmless and reversible. require, plaintiff, finding
Failure to in the main instructions for of justifying notwithstanding release, urged a verdict facts is as. by proved invalidity The facts defendant established the error. of of hereto even the evidence which we have release; medical point this it spoken not avail on because fore doés' defendant any evidence,1 knowledge it of such or believed shown time the was made. The statement fact, such at théí settlement attending physicians, introduced Fuson, Dr. one of insured’s showing the extent purpose of defendant’s at the of the insured’s condition time settle knowledge of -diseased say ment, Fuson stated therein could not as whether Dr. that-he statement, together This of insured. the disease hastened demise proofs loss, constituted all of medical with the contents have, at ever claimed to the time of com information defendant tending to show insured’s death was caused or contributed promise, ground. no in the There was error instructions on this disea.se. Campbell, C., judgment should be affirmed. concurs. The. C., adopted foregoing opinion
PEE. CURIAM: —The Sperry, . judgment the court. The is affirmed. All opinion as the concur. Appellants al., et Life Insurance Helen Bankers M. Crabtree Respondent. Company (2d) 128 S. W. Moines, Iowa, Des 1089. City April 3,
Kansas Court of Appeals. 1939.