Warren v. ætna Life Ins. Co.
| Decision Date | 03 June 1919 |
| Docket Number | No. 15399.,15399. |
| Citation | 213 S.W. 527,202 Mo. App. 1 |
| Court | Missouri Court of Appeals |
| Parties | WARREN v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN., et al. |
Appeal from St. Louis Circuit Court; George H. Shields, Judge.
Action by Hooper W. Warren, administrator of the estate of William T. Welch, deceased, against the Ætna Life Insurance Company of Hartford, Conn., in which defendant filed answer, interpleading James P. Newell, Public Administrator of the City of St. Louis, in Marge of the estate of Edith Welch, deceased. Judgment for interpleader Newell, and plaintiff appeals. Affirmed.
Henry S. Caulfield, of St. Louis, for appellant.
Campbell Cummings, of St. Louis, for respondent.
John M. Dawson, of Kahoka, amicus curiæ
This action originated as a suit brought by the plaintiff, Hooper W. Warren, administrator of the estate of William T. Welch, deceased, against the Ætna Life Insurance Company of Hartford, Conn., a corporation, upon an accident policy, to recover the proceeds thereof, amounting to $4,018.14. The insurance company filed an answer in the nature of a bill of interpleader, which was sustained, and the said company, upon paying said fund into court, was discharged, and the said plaintiff, as administrator aforesaid, and James P. Newell, public administrator, in charge of the estate of Edith Welch, deceased, were ordered to and did interplead for said fund. A trial was had before the court without a jury, resulting in a decree that Newell, public administrator, was entitled to the fund. In due course Warren, as administrator, brings this appeal.
By a stipulation of the parties, duly filed of record, it was agreed that William T. Welch, the insured, and Edith Welch were husband and wife, and that both were drowned on August 19, 1913, as the direct and immediate result of the overturning of the government boat, Henry Bosse, in the Mississippi river near Keokuk, Iowa. At the time said Welch was drowned he was insured against accident, for the proceeds of which policy of insurance the parties herein are interpleading ; that the said policy of insurance contained the following provisions:
The schedule of warranties contained the following paragraph:
"(9) Policy to be payable in case of death under its provisions to: Name, Edith Welch; address, St. Louis; relationship to me of beneficiary is that of wife."
Warren, administrator, plaintiff interpleader, introduced the policy and the abovementioned stipulation in evidence and rested. Newell, administrator, the defendant interpleader, thereupon without objection assumed the burden of proving that the beneficiary, Edith Welch, survived her husband.
All the evidence adduced on behalf of Newell, administrator, was in the form of depositions, being the testimony of Helmer Swenholt, a United States inspector assigned to the steamboat Henry Bosse, and who was aboard her on the day of her overturning; the testimony of Glen Slee, whose occupation was mate and steersman on the said steamboat on the day in question; and Dirk Le Fever and Joseph Fitzpatrick, both residents of Keokuk, Iowa, who went out to the hull of the Henry Bosse after the boat had capsized, and were present the day after, when the body of Welch was recovered from the wreck.
According to the undisputed testimony, Welch was the cook and his wife waitress on the steamboat Bosse. The boat was 22 feet wide and 126 feet long. The main deck was 18 inches above the water; the engine room and boilers, as well as the galley or kitchen, were situated on the main deck; the boiler room being forward, with the galley in the stern half of the boat and just in front of the engine room. The cabin and sleeping quarters were on the upper deck, referred to as the boiler deck, inasmuch as the deck was immediately above the boilers and engine room. The cabin was about 18 feet wide, the forepart being used as a dining room, back a which were the staterooms or sleeping quarters. On the starboard side were two staterooms, and on the port side there were three staterooms and a small office, and there were also two more staterooms at the rear of the cabin; a gangway or hall 6 feet wide ran between the port and starboard cabins; Welch's stateroom was the second stateroom from the bow on the starboard side. This stateroom was about 7 feet fore and aft and 6 feet across deck.
The boat had no guard rail of any kind on its main deck, and the main deck had an overhand of some 2 feet over the sides of the hull. On the upper or boiler deck there was a guard rail 2½ feet high, which was about 2 feet distant from the outer doors of the cabins.
Welch's position as cook required him to be up very early in the mornings, so that it was his habit to take a nap each afternoon, going to bed about 2 o'clock and sleeping until 4 o'clock. On this particular afternoon Mrs. Welch was seen sitting in front of the kitchen at 3 or 3:20 p. m.
On the afternoon of August 19, 1913, between 3:20 and 3:30 o'clock, the steamer Bosse was on the Mississippi river near Keokuk, Iowa. A severe storm or cyclone came up. The boat was headed about one degree northwest when the storm struck her starboard side and turned the boat over completely, so that the bottom of the hull of the boat was on top and about 18 inches above the water.
The Bosse had 1¼-inch hog chain braces running lengthwise of the boat from bow to stern. The object of these hog chains was to hold up the bow and stern of the boat, and to brace the superstructure of the boat. These hog chains, two in number, ran up through the aft part and the front part of the cabin, and were supported by two 8×8's forward and aft, and two 8×8 braces on each side of the cylinder timbers. Each of these braces had an iron plate with a groove in it on the top, and the hog chain rested in said groove. These hog chains ran over each end of the boat,...
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