Cox v. Mutual Life Ins. Co. of Baltimore

• Decision Date: 02 November 1937
• Docket Number: No. 24059.,24059.
• Citation: 109 S.W.2d 694
• Court: Missouri Court of Appeals
• Parties: COX v. MUTUAL LIFE INS. CO. OF BALTIMORE.

109 S.W.2d 694

COX v. MUTUAL LIFE INS. CO. OF BALTIMORE.

No. 24059.

St. Louis Court of Appeals. Missouri.

November 2, 1937.

Rehearing Denied November 19, 1937.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be published in State Reports."

Action by Amy Cox against the Mutual Life Insurance Company of Baltimore. From a judgment for plaintiff, defendant appeals.

Reversed.

Jones, Hocker, Gladney & Jones and Warren F. Drescher, Jr., all of St. Louis, for appellant.

Strubinger & Strubinger, of St. Louis, for respondent.

BENNICK, Commissioner.

This case, which comes to the writer on reassignment, is an action for the recovery of the double indemnity or accidental death benefit of $495 alleged to be due plaintiff as the beneficiary under a policy of life insurance issued by defendant upon the life of plaintiff's son, Herbert R. Cox, who came to his death on August 14, 1932, at the age of twenty-two years, as the result of bodily injury concededly occurring through external, violent, and accidental means.

The defense was that death had resulted from violation of law by the insured, and that the company was therefore exempted from any liability for payment of the accidental death benefit by virtue of a clause of the policy providing that "no accidental death benefit will be paid if the death of the Insured resulted from suicide, or from having been engaged in submarine or diving operations, or in aviation as a passenger or otherwise, or from military or naval service in time of war, or from violation of law by the Insured".

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the aggregate sum of $524.03, representing the principal amount sued for with interest. Judgment was rendered accordingly, and defendant's appeal to this court has followed in the usual course.

The death of the insured occurred at a point along the right of way of the Illinois Central Railroad Company within the corporate limits of the city of Chicago, when his head came in contact with an overhead steel girder while he was riding on top of one of the coaches of a St. Louis bound passenger train of that company.

The details of the accident appear in the deposition of one Starr, which was read in evidence by defendant in support of its defense that the insured's death had resulted from his violation of law.

It seems that shortly before midnight of August 14, 1932, Starr and the insured went to the depot or station grounds of the Illinois Central Railroad Company on South Michigan boulevard in the city of Chicago with the intent of "stealing" a ride on one of the company's passenger trains bound for St. Louis. The particular train was "The Diamond Special," which was scheduled to leave at 11:55 p. m.

According to Starr's testimony, they entered upon the premises by crawling under a "drop beam" that was supposed to keep pedestrians off of the railroad property at that particular point. After crossing some seven or eight tracks, they came to the train which they intended to catch, which was then standing alongside the regular loading platform at the depot proper.

While Starr and the insured were standing off to the side of the track awaiting the moment when the train would start up, an unidentified man carrying a gun in a holster under his left arm, but wearing no badge of any sort on the outside of his clothing, walked up to them and inquired where they were going. Their answer was that they wanted to go to St. Louis, whereupon the man said: "It is all right with me for you to catch this train, but step back in the shadows until the train starts moving, to keep the conductor from seeing you. If he sees you, I will catch hell."

The man then turned and walked over to the platform, where he stood and watched Starr and the insured as they caught the train when it started pulling away from the station. Climbing to the top of one of the coaches, the insured sat down in front of Starr, and all was going well enough with them until the insured shortly raised up for the purpose of straightening out some papers which he was using to prevent his clothing from being soiled by contact with the top of the coach. At the moment he did so, he was struck on the head by a projecting beam used for signal lights, the force of the blow being sufficient to kill him instantly. Starr caught and held him until the train came to a brief stop on signal at a point farther south in the city, when he climbed down from the coach, bringing the body of the insured along with him. An ambulance was called and the body taken away, while Starr was taken to a police station, apparently for the purpose of having him appear at the coroner's inquest which was held on the following morning.

Other evidence disclosed that, when a train is made up and ready to leave on its run, the conductor has charge of the train, and that, so far as concerns those persons employed on and about the train, there is no one who has authority superior to that of the conductor.

The law which it is claimed that the insured was violating at the time of his death is a certain statute of Illinois (Smith-Hurd Ann.St., c. 114, §§ 72, 74), which, at the time in question, read as follows:

"§ 72. No person or minor shall climb, jump, step, stand upon, cling to, or in any way attach himself to any locomotive engine or car, either stationary or in motion, upon any part of the track of any railroad, unless in so doing he shall be acting in compliance with law, or by permission, under the lawful rules and regulations of the corporation then owning or managing such railroad."

"§ 74. Any person or minor who shall violate any of the provisions of the seventeenth [seventy-second] section of this act shall be punished by a fine not exceeding $25, to be recovered in an action of debt, in the name of the People of the State of Illinois, before a justice of the peace, or, upon conviction, by imprisonment in the county jail, or other place of confinement, for a period not exceeding twelve hours."

Contending that the fact of the insured's violation of the above statute appeared in the case as a matter of law, defendant argues as a point of chief insistence that it should have had a directed verdict at the close of all the evidence.

The construction of the provision of the policy relieving the company from liability for payment of the accidental death benefit if the death of the insured resulted from his violation of law presents no serious problem.

It need hardly be said that the provision is to be given a fair and reasonable construction in the light of the intent of the contracting parties and the purpose sought to be accomplished, to which end there are several considerations which point to the proper conclusion. It is of course to be noted that the language of the provision covers the whole field of violation of law, and makes no distinction between felonies and misdemeanors. However, it is obvious that it would not be enough for the company merely to show that the insured came to his death while engaged in some incidental or contemporaneous violation of the law. Under the very terms of the policy the company...