Railway Officials' & Employes' Acc Ass'n v. Wilson

• Decision Date: 13 February 1900
• Docket Number: 1,232.
• Citation: 100 F. 368
• Parties: RAILWAY OFFICIALS' & EMPLOYES' ACC. ASS'N v. WILSON.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F. 368

RAILWAY OFFICIALS' & EMPLOYES' ACC. ASS'N v. WILSON.

No. 1,232.

United States Court of Appeals, Eighth Circuit.

February 13, 1900

George Hall and Guilford A. Deitch (O. G. Bain, Frank Hall, Fabius M. Finch, William R. Zulich, and John A. Finch, on the brief), for plaintiff in error.

E. M Harber and Frank P. Sebree (A. G. Knight and H. C. McDougal on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

May Wilson, the defendant in error, was the wife of Stephen G Wilson, who lived at Trenton, in the state of Missouri, and kept a restaurant in a building a few feet south of his residence. There was a small storeroom in the rear of his residence, to which there were two doors, that were usually kept closed, one opening into the diningroom, and the other upon a porch on the south side of the storeroom. On the night of March 25, 1897, Wilson was found dead in this storeroom with two terrible wounds, one upon the back of his head, and the other on his forehead, either of which was sufficient to cause his death. He was a member of the Railway Officials & Employes' Accident Association, a corporation, and the plaintiff in error, and was insured by that association, according to the terms of a certificate of membership which he held, against accidental physical bodily injuries which should result in death within 90 days, for the benefit of his wife, the defendant in error, in the sum of $5,000. The certificate contained this provision:

'This insurance shall not cover disappearances; nor injuries nor death for which there is no visible external mark upon the body of the insured (the body itself, in case of death, not being deemed such mark); nor death by injury resulting from, or attributable partially or wholly, directly or indirectly, by or in consequence of any of the following causes: * * * Injuries resulting from the intentional acts of the insured, or any other person, or death resulting from such acts, whether the insured or such other person be sane or insane (injuries inflicted by burglars, highwaymen, or thieves excepted).'

The defendant in error brought this action upon this certificate, and alleged that Wilson died from injuries inflicted upon him by violent and accidental means, and 'that said injuries were inflicted by some burglar or burglars, highwayman or highwaymen, thief or thieves, unknown to this plaintiff, as aforesaid, then and there, on the 25th day of March, 1897, at the city of Trenton, Grundy county, state of Missouri, striking the said Stephen G. Wilson on the head and other vital parts of his body with an ax and other deadly weapons, and then and there, and with said ax and other deadly weapons, instantly kill him, plaintiff's said husband. ' The answer of the association contained a general denial of the averments of the petition relative to the cause of the death of Wilson; an averment that it was caused by a blow with a deadly weapon which was intentionally inflicted by some person, and which crushed his skull and instantly killed him; and an allegation that the certificate provided that the insurance which it evidenced should not cover injuries or death resulting from quarreling or fighting, and that Wilson was engaged in quarreling or fighting with some unknown person when he received the injuries which killed him. To this answer a reply was interposed, in which the defendant in error admitted that Wilson's death was caused by a blow intentionally inflicted upon him by some third person, and denied all the other allegations of the answer. The case was tried to a jury, and the only issue presented to them was whether Wilson was killed by a burglar, highwayman, or thief, or by some other person. They found this issue for the defendant in error, and returned a verdict in her favor, which was followed by a judgment against the association.

The first specification of error urged upon our consideration is that the defendant in error alleged in her petition that the injuries which resulted in the death of the assured 'were inflicted by some burglar or burglars, highwayman or highwaymen, thief or thieves, unknown to the plaintiff,' without alleging her belief of one alternative or the other, and her ignorance whether it was one or the other, in accordance with the provisions of section 2071 of the Revised Statutes of Missouri of 1889, which reads: 'Facts stated may be in the alternative. Either party may allege any fact or title alternatively, declaring his belief of one alternative or the other, and his ignorance whether it be the one or the other. ' The point is too technical, and it comes too late for serious consideration. It was not presented by motion, demurrer, or objection to testimony before judgment. It was first made after the verdict by a motion in arrest of judgment. The petition contains all the substantial averments requisite to a good cause of action, and, if there is any defect in it, it is a mere formal one, which might have been immediately remedied by amendment, if it had been challenged by demurrer.

After verdict or judgment, an objection to a petition is tenable only when the pleading fails to allege the substance or foundation of a good cause of action. Where the averments are simply informal, indefinite, or conclusions of law, objections to these defects are untenable and futile after the trial. Rev.St. § 954; Rev.St.Mo. 1889, § 2113; Less v. English, 85 F. 471, 476, 29 C.C.A. 275, 280, 56 U.S.App. 17, 26; Glaspie v. Keator, 56 F. 203, 5 C.C.A. 474, 12 U.S.App. 281; City of Plankinton v. Gray, 63 F. 415, 11 C.C.A. 268, 27 U.S.App. 321; Parks v. Turner, 12 How. 39, 45, 13 L.Ed. 883; Stockton v. Bishop 4 How. 155, 11 L.Ed. 918; Gardner v. Lindo, 1 Cranch, C.C. 78, Fed.Cas.No. 5,321.

The next contention of counsel for the plaintiff in error is that the refusal of the court to grant their request at the close of the trial to instruct the jury to return a verdict for the association was error. Many authorities have been cited by counsel relative to the duty of the court when such a request is presented. The rule upon that subject is that at the close of the evidence there is always a preliminary question for the judge before the case can properly be submitted to the jury, and that is not whether or not there is any evidence but whether or not there is any substantial evidence upon which the jury can properly render a verdict in favor of the party who produces it, and that, if there is no such evidence, it is the duty of the court to direct the jury to return a verdict against him. Commissioners v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59; North Pennsylvania R.Co. v. Commercial Nat. Bank, 123 U.S. 727, 733, 8 Sup.Ct. 266, 31 L.Ed. 287; Railway Co. v. Converse, 139 U.S. 469, 11 Sup.Ct. 569, 35 L.Ed. 213; Laclede Fire-Brick Mfg. Co. v. Hartford Steam-Boiler Inspection &Insurance Co., 60 F. 351, 354, 9 C.C.A. 1, 4, 19 U.S.App. 510, 515; Gowen v. Harley, 12 U.S.App. 574, 585, 6 C.C.A. 190, 56 F. 973; Motey v. Granite Co., 74 F. 155, 157, 20 C.C.A. 366, 368, 36 U.S.App. 682, 686; Railway Co. v. Belliwith, 83 F. 437, 441, 28 C.C.A. 358, 362, 55 U.S.App. 113, 121. But it is equally well settled that it is only when the evidence leaves the material facts admitted or substantially undisputed, and only when these facts are such that reasonable men, in the exercise of an honest and impartial judgment, can fairly draw but one conclusion from them, that the court may properly withdraw the case from the jury. If the evidence relative to...