Fisher v. Travelers' Ins. Co.

• Decision Date: 03 June 1911
• Parties: FISHER v. TRAVELERS' INS. CO.
• Court: Tennessee Supreme Court

138 S.W. 316

124 Tenn. 450

FISHER v. TRAVELERS' INS. CO.

Supreme Court of Tennessee.

June 3, 1911

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Action by J. B. Fisher against the Travelers' Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Fitzhugh & Biggs and Turley & Turley, for appellant.

Carroll & McKellar and Canada & Phelan, for appellee.

NEIL J.

The complainant, J. Baxter Fisher, procured of the defendant an accident insurance policy in the sum of $10,000 on the 5th of November, 1906. This policy contained the usual clauses with respect to accidents producing a partial injury, and also a provision that, in the event of death, the principal sum should be paid to his wife, Lula A. Fisher, if surviving otherwise, to the executors, administrators, or assigns of the insured. This policy is known in the record as "D34802." Attached to it was what is called a beneficiary supplement, in which the life of the wife was insured against accidents. This provided that, in case death should occur to the wife from "bodily injuries, effected directly and independently of all other causes, through external, violent, and accidental means (suicide, sane or insane, not included), while riding as passenger and being in or on any railway passenger car using steam cable, compressed air, or electricity as a motive power, or while in a passenger elevator, or while traveling as a passenger on board a steam vessel licensed for the regular transportation of passengers, or caused by the burning of a building" while the wife was therein, $10,000 should be paid to the husband, J. Baxter Fisher. For injuries not resulting in death, this supplement provided that money accruing under the policy should be paid to the wife. On the 16th of June, 1907 the complainant took out another policy of accident insurance on his own life in the sum of $5,000. This policy also provided that, in the event of death, the principal sum of $5,000 should be paid to the wife, Lula A. Fisher. It is known in the record as "E33739." There was prepared to go with this policy a beneficiary supplement on the life of the wife. Its terms are similar to those contained in the supplement already referred to, except the sum expressed--that is, $5,000, instead of $10,000--and except this clause: "That the beneficiary signs consent below to the insurance herein given, and warrants all the following statements to be true." Then follow statements as to her age, weight, and residence; that J. Baxter Fisher is her husband, and her occupation that of housewife; that she has no other accident insurance, except that in the former policy; that she is in sound condition mentally and physically, and except the following at the close of the paper: "I consent hereto, and warrant the above statements to be true." Then follows a blank space for the signature. Under this are the following words: "Beneficiary under This Supplement." This supplement is known in the record as "Beneficiary Supplement No. 82887." It is dated May 20, 1907, while the policy to which it was intended to be attached is dated, as we have already said, on the 16th day of June--at least, the policy was to begin on the 16th of June, according to its terms. The supplement provides that the insurance under it shall commence "on the date below." The date below is the 20th day of May, 1907. The supplement was countersigned by Paul B. Jefferson, one of the agents of the company, and handed to J. Baxter Fisher. Mr. Jefferson says in his deposition that he handed it to him to be signed by the wife and returned for attachment to the policy. On cross-examination he says he does not remember this, but he so stated from his usual course of business. He, however, did hand it to J. Baxter Fisher. Subsequently, on July 16, 1907, the following paper was handed to the company. In the meantime Paul B. Jefferson had ceased to be an agent of the company. It is on the letter head of the company's office at Memphis, and reads as follows:

"Agency at Memphis, Tennessee,

July 16th, 1907.

"We, J. Baxter Fisher and Lula A. Fisher, hereby certify that Beneficiary Supplement No. 82887, issued through the agency of Marks & Bensdorf, district managers, Memphis, Tennessee, on the life of Lula A. Fisher, has been lost, mislaid, or destroyed, and that the same is not now in force, and in consideration of $1.00 to us in hand paid, the receipt of which is hereby acknowledged, we hereby agree to hold the Travelers' Insurance Co., of Hartford. Conn., harmless from all or any claims or liability under said beneficiary supplement; and it is further agreed that, in case said beneficiary supplement should be found at any time, it shall be at once forwarded to the office of the company in Hartford. Conn.

"[Signed] Lula A. Fisher, Assured.

J. B. F.

"Witness: F. H. H."

Two days before the date of the paper just quoted--that is, on the 13th of July, 1907--there was issued another beneficiary supplement in the place of No. 82887, and known in this record as "Beneficiary Supplement No. 96377." It contained the same provisions as No. 82887, as to the signature of the wife. It was countersigned by Paul B. Jefferson, but not until after he had left the service of the company. However, Mr. Bensdorf, one of the district managers of the company at Memphis, testified that this was issued in lieu of No. 82887, and that the premium on the latter had been paid, and had never been returned. This purports to be signed by Lula A. Fisher, but there was evidence that her name was written by J. Baxter Fisher, himself. The suit was first brought on No. 82887, and by subsequent amendment No. 96377 was added. It appears that No. 82887 turned up before the suit was brought. This explains issues 2 and 3 referred to in the charge of the court to the jury, which will be mentioned in the course of the opinion.

The jury was called for by the complainant, and issues were submitted to them. These issues need not be referred to more particularly than they are set out below in disposing of the charge of the court.

There was a verdict for the complainant for the full amount of both supplements and interest, and the defendant, after its motion for new trial had been overruled, appealed to this court, and has here assigned errors.

The first assignment of error is based on the refusal of the trial judge to permit the witnesses Caruthers Ewing, Henry J. Livingston, H. R. Miller, J. I. Foster, and T. N. Gorham to testify before the jury as to the experiments made with the same street car on which the alleged accident occurred at the same curve, and under substantially the same conditions as those which existed at the time of the alleged accident, as tending clearly to show that the deceased, Lula A. Fisher, could not possibly have been injured in the manner alleged in the bill, and as claimed by the complainant's witness Leibkeman, and in excluding, over the defendant's objection, all the testimony of said witnesses.

As set out in another portion of defendant's brief, the defendant offered evidence of the witnesses referred to, in substance to the effect that experiments were made with the same car at the same curve, and under substantially the same conditions that existed at the time of the alleged accident, which tended to show that it was physically impossible for any swerve of the car, while going east around the curve in question, to cause a person walking in the aisle to the rear to fall towards the north, or to the side; that these experiments were made with the car running at various speeds, and the witnesses testified that in going at only three or four miles per hour around the curve it would not disturb the balance of any one while walking in the aisle; but when running at a high rate of speed the effect upon a person so walking towards the rear, exactly as Mrs. Fisher was doing, and in the same part of the car, was invariably the opposite of Leibkeman's testimony; in other words, that, where there was the slightest tendency to fall, it was invariably towards the left--that is, towards the outside of the curve, or the direction in which the car was going before it struck the curve, which constituted a partial obstruction.

Dr Leibkeman testified that he was on the same car on which Dr. Fisher and his wife were riding at the time the accident is said to have occurred; that when the car was near the place where Dr. Fisher and his wife were to stop, Mrs. Fisher, who was sitting near the end of the car, perhaps the second or third seat from the back of the car, rose to walk out, and had gotten in the aisle of the car, and was going towards the back of the car, and that the car made a swerve, and she fell or was thrown upon the railing of a seat in front of her, and sank to the floor with her hands or arms on the end of the seat, and was picked up by her husband and carried from the car when it stopped. It is shown that the swerve was made at the curve. It appears from the evidence that the car was going in a southeast direction, and that the curve in the track was to the south, and hence that the swerve must have been to the south. It appears from the testimony of Dr. Leibkeman that she fell to the north, and that the alleged injury upon which the action was brought, and which is said to have caused the death of Mrs. Fisher, was to the right side; it being claimed that four ribs were broken, and that she died from the shock caused by this injury. The evidence of the motorman of the car is that the car was going three or four miles an hour at the time Mrs. Fisher fell. Now, it is, of course, possible that Mrs. Fisher may have had a sudden fainting spell, and have fallen upon the railing of the seat, without...