Distler v. Columbian Nat. Life Ins. Co.

• Decision Date: 04 January 1921
• Docket Number: No. 16236.,16236.
• Citation: 227 S.W. 133,206 Mo. App. 263
• Parties: DISTLER v. COLUMBIAN NAT. LIFE INS. CO.
• Court: Missouri Court of Appeals

227 S.W. 133

206 Mo. App. 263

DISTLER v. COLUMBIAN NAT. LIFE INS. CO.

No. 16236.

St. Louis Court of Appeals. Missouri.

January 4, 1921.

Rehearing Denied February 4, 1921.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by Caspar Distler against the Columbian National Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Leahy & Saunders and David W. Voyles, all of St. Louis, for appellant.

W. E. Moser and Kelley & Starke, all of St. Louis, for respondent.

NIPPER, C.

This is an action on an accident insurance policy. The petition seeks to recover double indemnity, which is provided for in the policy if the insured be injured while a passenger in or on a public conveyance (including the platform, steps, or running board thereof) provided by a common carrier for passenger service.

The answer denied liability under the double indemnity clause, and set up a number of defenses.

Plaintiff recovered judgment for $1,050 due under the policy, $45.82 interest, $105 damages, $350 attorney's fees, making a total of $1,550.82.

Defendant appeals.

Plaintiff, whose business was baker and confectioner, resided in the city of St. Louis, where he stated he had been engaged in such business for about 26 years.

Plaintiff testified that on or about the 28th of October, 1916, while riding on a street car in St. Louis, and on what is known as the Wellston line, he had proceeded west until the car reached the intersection of Newstead and Easton avenues; where he was intending to leave the car. He signaled for the car to stop, which was done. At the time, he was riding on the rear platform where two or three other men were also riding as passengers. One of these men was standing in his way as he started to get off the car, and before he could step down off the car onto the ground the car started with a sudden jerk and threw him into the street, where he received the injuries complained of, consisting of broken fingers, lacerated hands, and injuries to his body and legs.

On behalf of the defendant, the evidence showed that the plaintiff did not wait for the car to stop, but voluntarily stepped off the car while it was in motion and before it stopped or reached the usual stopping point. Three or four witnesses who were on the car, and some of whom were on the rear platform at the time plaintiff sustained his injuries, testified positively that he deliberately stepped from the car while it was in motion.

At the trial and during the cross-examination of plaintiff, the following took place:

"Q. Mr. Distler, your attorney, Mr. Kelley, went to the office of the Columbian National Insurance Company, and they offered him $400 to settle your claim, didn't they? A. I don't know.

"Mr. Kelley: Wait a minute. I never did; you are mistaken about that. For your information, I'll say I did not go over there.

"Mr. Leahy: Well, the representative of the insurance company saw Mr. Kelley, whether at their place of business or his office, and offered $400? A. I don't know.

"Q. Didn't Mr. Kelley tell you to take that? A. No, you offered me $900, and I said I wouldn't take it; didn't you?

"Mr. Leahy: Now, I will ask for a mistrial on it.

"Mr. Kelley: But you brought it out.

"Mr. Leahy: I did not bring any such thing out.

"Mr. Kelley: Yes, you did.

"Mr. Leahy: That is a statement unwarranted and uncalled for and improper, and I ask for a mistrial.

"The Court: It is not responsive to your question; you did not bring it out; I will order it stricken out, and overrule your application for a mistrial. The jurors are instructed to disregard the statement just made by the witness as to any proposition that Mr. Leahy is supposed to have made to him."

Such other testimony as may be necessary to a proper determination of the points raised by appellant will be set out arid referred to in the opinion.

Appellant contends that plaintiff was not entitled to recover for double indemnity because the injuries he sustained were not received while in or on a public conveyance, nor on the platform, steps, or running board thereof, as provided for by the terms of the policy providing for double indemnity; that the court erred in not declaring a mistrial on account of the voluntary statement of the witness as above set out in the testimony with respect to the offer of $900; and that there was no testimony to sustain the finding and judgment as to the assessment of penalty and attorney's fees for vexatious refusal to pay.

As to the first contention of appellant, we rule adversely. There is no contention in this case as to the defendant's liability; but it is denied that it is liable for double indemnity because plaintiff was not in or on this street car (including the platform or steps) at the time he received the injury, so as to come within the provisions of the policy providing for double indemnity, where the insured received injuries under such circumstances.

To say that the plaintiff did not receive his injuries while riding as a passenger in or on this street car or the steps thereof, but received his injuries after he had safely disconnected himself from the car, would be like saying that a man did not receive any injuries by a fall, but...