Lamport v. Ætna Life Ins. Co.

• Decision Date: 05 January 1918
• Docket Number: No. 18535.,18535.
• Citation: 199 S.W. 1020
• Parties: LAMPORT et al. v. ÆTNA LIFE INS. CO.
• Court: Missouri Supreme Court

199 S.W. 1020

LAMPORT et al. v. ÆTNA LIFE INS. CO.

No. 18535.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Edward J. Lamport and the Commerce Trust Company against the Ætna Life Insurance Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

This is an action brought by plaintiffs against defendant, upon an accident insurance policy issued by defendant to plaintiff Lamport, for the alleged accidental loss by the latter of his left hand. Upon a trial of the issues herein, verdict and judgment went in favor of defendant, whereupon plaintiffs, after the usual motions, have appealed.

The case is here upon a short abstract, wherein reference is made to the evidence adduced upon the trial only in general terms; that is to say, that the testimony adduced tended to prove certain stated issues. Nothing is relied on for reversal which turns in any wise upon the sufficiency of the evidence, or upon the admissibility of any portion thereof. The points relied on for reversal having reference solely to certain alleged misconduct of the trial judge, to his alleged giving of an oral instruction to the jury, and to the giving and refusing upon the trial of certain instructions asked by defendant and plaintiffs respectively.

The petition of plaintiffs seems to be conventional, and since no attack of any sort was made upon it, we need not take up space in stating its contents or substance. After the original petition herein was filed, plaintiff Commerce Trust Company, averring that it was interested in plaintiff Lamport's cause of action, for that it had loaned him money, taking in security therefor the identical policy of insurance sued on, was by an amended petition filed in the cause made a party plaintiff. If we shall have cause to refer to said Commerce Trust Company, we shall refer to it by name; if we shall use the plural of the word plaintiff, we shall intend thereby to refer to both plaintiffs, but for convenience we shall designate plaintiff Lamport by the word "assured." The amended petition of plaintiffs contains two counts; the first averring that the casualty to assured occurred while he was a passenger upon a public conveyance, to wit, a street car, and prayed damages in accordance with that situation, and the terms of the policy, in the sum of $10,000, plus interest and attorney's fees. The second count, while averring the fact that assured was at the moment of the casualty a passenger upon a public conveyance, yet prays for what is called in the policy "single indemnity," which applies to the loss of either hand of the assured at or above the wrist by any accidental means whatever. In said second count plaintiffs prayed of the sum only of $5,000, the amount of said single indemnity, likewise, plus certain interest and attorney's fees.

The answer of defendant was unique, in that it admitted the issuance of the policy in question; admitted the loss of assured's left hand at or above the wrist, but averred that said loss was not occasioned by any accident whatever, but that it was the result of assured's having intentionally (and with the view to work a fraud upon defendant) thrust his hand under the wheel of the street car in question while the latter was in motion. Other breaches of alleged warranties are set out in the answer, but none of them concerns us here, so far as the contentions urged upon this appeal are involved.

There was heretofore pending in this court a seemingly identical action in all respects between the plaintiffs herein and another accident insurance company, wherein (we go outside of the record to say) the facts, issues, and circumstances were in every respect similar to those involved in the instant case. Lamport v. General Accident Fire & Life Assurance Corporation, 197 S. W. 95 (not yet officially reported). So far, then, as may concern the evidentiary facts, which are not before us and which we do not find it necessary to this case to discuss, the curious may read those facts in the case above mentioned. As the case turns upon certain alleged misconduct of the court, and upon the giving and refusal of instructions, and upon the manner in which an alleged instruction was given, we have deemed it best to set forth the facts touching the errors complained of in connection with our discussion of the case.

Martin J. O'Donnell, James E. Goodrich, and B. C. Howard, all of Kansas City, for appellants. J. C. Rosenberger and Rollin E. Talbert, both of Kansas City, for respondent.

FARIS, J. (after stating the facts as above).

I. Many grounds are urged for the reversal of this case. These we shall consider in their order as presented in the briefs, since too much space would be necessary to restate them here. After the evidence and the arguments of counsel had been completed, and after the jury had been for some two hours or more on a Saturday afternoon deliberating upon their verdict, the learned trial judge sent the sheriff to the jury room to inquire whether the status of their deliberations was such as to make advisable the excusing of them till Monday. The jury through the sheriff advised the trial judge that they desired to see him about the matters inquired about. Thereupon, and in order to avoid the trouble of having the jury brought into the courtroom, the judge went with the sheriff to the jury room. The matters and things which thereupon transpired are thus stated by the learned trial judge:

"And told the jury that he had no desire to hasten their deliberations; that he merely wished to know if there was a possibility of their being able to agree upon a verdict within a half hour or so; that if there was, he would wait on them. If there was not, they would be excused until the following Monday morning, then to return and further consider their verdict; that he was informed that they thought they could agree upon a verdict within five or six minutes; that he then said to them not to hurry about it, to take three-quarters of an hour if they liked; that he would wait about that length of time for them; that one of the jurors said to the judge that he did not understand one of the instructions; that the judge advised him that he could not explain verbally to him the instructions. He then said something about a question of whether plaintiff had been a passenger was not clear to him, and thereupon the judge told him that there were only two issues in the case, whether or not plaintiff Lamport intentionally cut off his hand, and whether or not he was at the time a passenger, and that their verdict must be for the whole amount prayed for in the instructions or nothing; that, in the opinion of the court, all the issues were fully covered by the instructions, and that all the instructions should be taken together, and that if he would read them all his perplexity about the one would, doubtless, clear up. The judge had no knowledge whatever of how the jury stood at that time, and it is his recollection the verdict was reached within twenty or thirty minutes after said time."

This action of the court nisi is made the basis of plaintiffs' contention that the court erred: (a) In visiting the jury room; (b) in participating in the deliberations of the jury; (c) in orally instructing the jury as to the issues in the case; and (d) in stating incorrectly the law of the case in such oral instruction. Against the hurtfulness of the court's action — seemingly otherwise conceded to be error — defendant insists: (1) That one Hill was of counsel for plaintiffs, and that the latter knew of the court's action, but stood by without objecting or excepting thereto till the adverse verdict came in; and (2) that the instruction given by the court to the jury was a correct exposition of the law, therefore plaintiffs were not so far hurt by it as to be now permitted after verdict to object to it as reversible error. Glenn v. Hunt, 120 Mo. loc. cit. 343, 25 S. W. 181.

We need take up but little space in agreeing to what we understand to be the sub silentio concession of counsel for defendant, that ordinarily the giving of additional instructions to a jury, after a case has been argued and submitted to the jury, is error, unless it is done in open court, so that the parties or their attorneys may have an opportunity to be heard. State v. Alexander, 66 Mo. loc. cit. 164; Glenn v. Hunt, supra; State v. Nelson, 181 Mo. loc. cit. 340, 80 S. W. 947, 103 Am. St. Rep. 602; McPeak v. Railroad, 128 Mo. loc. cit. 644, 30 S. W. 170; State v. Hill, 91 Mo. 423, 4 S. W. 121; State v. Punshon, 124 Mo. 458, 27 S. W. 1111; Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S. W. 467. But defendant urges that the action of the court here was not reversible error, because the oral instruction given was a correct statement of the law as applied to the facts of this case. Whether even such a condition is the universal test of harmfulness in case of unwarranted oral or additional instructions we need not rule. For we do not agree that the oral instruction given in this case was correct. The court said to this jury, while in the jury room, this:

"That there were only two issues in the case, whether or not plaintiff Lamport intentionally cut off his hand, and whether or not he was at the time a passenger, and that their verdict must be for the whole amount prayed for in the instructions or nothing."

From the fact that plaintiffs in a second count to their petition which they had dismissed prayed for only $5,000 damages under the policy if it should develop, and the jury should find that Lamport's hand was cut off while he was not a passenger upon a street car, defendant contends that under the pleadings, the evidence, and the instructions, plaintiffs were bound to recover the full sum of $10,000, or nothing, and that therefore they could not have been hurt by what the court said to the jury.

The "single...