Batten v. Modern Woodmen of America

• Decision Date: 08 June 1908
• Citation: 111 S.W. 513,131 Mo.App. 381
• Parties: REBECCA ANN BATTEN, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant
• Court: Kansas Court of Appeals

111 S.W. 513

131 Mo.App. 381

REBECCA ANN BATTEN, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Randolph Circuit Court.--Hon. William H. Martin, Judge.

AFFIRMED.

Judgment affirmed.

Benj. D. Smith and Tunnell & Hart for appellant.

Where as in this case, the uncontradicted and over-whelming weight of the evidence shows the fact that Batten was engaged in a hazardous occupation and that his death was directly traceable thereto, it was the duty of the trial court to direct a verdict for the defendant, and the court erred in not so directing the jury, and the appellate court will, on appeal, reverse the judgment. Reichenbach v Ellerbe, 115 Mo. 588, and cases therein cited; Lavin v. Grand Lodge, 104 Mo.App. 1; Carroll v. Transit Co., 107 Mo. 653. (2) Where a verdict can be accounted for only on the ground of ignorance, partiality, prejudice or passion, it will not be permitted to stand. Lang v. Moon, 107 Mo. 334, 17 S.W. 810; Caruth v. Richerson, 96 Mo. 186, 9 S.W. 633; Avery v. Fitzgerald, 94 Mo. 207, 7 S.W. 6; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. 441; Spohn v. Railroad, 87 Mo. 74; Whitsett v. Ransom, 79 Mo. 258. (3) It is the duty of the court to construe the contract, and only issues of fact should be submitted to the jury. Bannock v. Elmore, 114 Mo. 55; Albert v. Bessel, 88 Mo. 150; Loesch v. Casualty Co., 176 Mo. 654, 75 S.W. 621. (4) The court erred in submitting the question as to the proper construction of the contract, with relation to the character of Batten's occupation, to the jury. Belt v. Good, 31 Mo. 129; Blakely v. Benneke, 59 Mo. 193; Bannock v. Elmore, supra; Milstead v. Mortgage Co., 49 Mo.App. 191.

Willard P. Cave for respondent.

(1) The court did not err in submitting the disputed issues to the jury. Hardister v. M. M. L., 118 Mo.App. 679; Supreme Lodge K. of P. v. Lillian H. Beck, 181 U.S. 49. (2) The court did not err in giving plaintiff's instruction number 1. (3) The court did not err in refusing instruction numbered 5 asked by defendant because same had already been given in instructions numbered 3 and 4 asked by defendant. Phillips v. Smoot, 15 Mo. 598; Powell v. Camp, 60 Mo. 569; Davis v. Railroad, 46 Mo.App. 180; Naylor v. Cox, 114 Mo. 232. (4) The court did not err in admitting testimony as to wages paid to switchmen and to the class of employees to which Batten was assigned, as same was a circumstance to be considered along with the other facts and circumstances detailed in the evidence. The verdict of the jury comes fairly within the issues made in the trial, and is supported by substantial evidence.

OPINION

ELLISON, J.

Plaintiff is the widow of William L. T. Batten, deceased, who, in his lifetime was a member of the defendant, Modern Woodmen of America, a fraternal benefit society. He took a benefit certificate in favor of the plaintiff for $ 1,000. After his death proofs of loss were made and defendant refusing to pay, the present action was instituted in which plaintiff prevailed in the trial court.

The certificate, and the by-laws which were made a part thereof, forbade deceased from engaging in the hazardous employment of a railroad switchman who engaged in switching, coupling or braking; or of a car coupler on all trains except air-brake trains. It also provided that "A person shall be held to be engaged in any of the foregoing hazardous occupations when the work or duties incident to his employment require him, occasionally or continuously, during any part of the year, to perform any of the work or duties of, or incident to, said hazardous occupation."

Deceased for four months prior to his death was engaged by the Wabash Railway Company as one of a gang of laborers around the railroad shops at Moberly. Their duties were to do common labor about the shops. In aid of their labor they used a small engine which was without tender or headlight and operated by one man. They did not work out in the switchyards, nor did they engage in the switching and braking attending upon the making up or breaking up of trains. The men worked in daytime, but on the occasion in question they worked over-time, running into darkness at that time of year--January, 1907. At time of his death he and another who was in charge of the small engine above mentioned, were moving a "dead engine" by pushing it into the shop. He was riding on the latter engine and by some unknown means fell off and was crushed to death.

The defense was grounded on the plea that deceased was engaged at time of his death in one of the prohibited occupations within the meaning of the certificate, and defendant contends that the evidence established this and that its demurrer at close of plaintiff's case should have been sustained. We think not. The evidence leaves no room to claim that deceased was what is understood to be a railroad switchman, brakeman or car coupler, and we have only to see if it showed that the work or duties incident to the labor at which he was engaged required him "to perform any of the work or duties of or incident to," such occupations. There is a considerable part of the labor one does in any one occupation...