King v. New Empire Ins. Co.

• Decision Date: 03 December 1962
• Docket Number: Nos. 23614,23618,s. 23614
• Citation: 364 S.W.2d 40
• Parties: Freda E. KING, Plaintiff-Respondent-Appellant, v. NEW EMPIRE INSURANCE COMPANY, a Corporation, Defendant-Appellant-Respondent.
• Court: Missouri Court of Appeals

Page 40

364 S.W.2d 40

Freda E. KING, Plaintiff-Respondent-Appellant, v. NEW EMPIRE INSURANCE COMPANY, a Corporation Defendant-Appellant-Respondent.

Nos. 23614, 23618.

Kansas City Court of Appeals, Missouri.

Dec. 3, 1962.

Frank P. Barker, Frank P. Barker, Jr., Wayne F. Caskey, Jr., Barker, Fallon, Jones & Barker, Kansas City, for appellant.

James J. Wheeler, Keytesville, for respondent.

BROADDUS, Judge.

This is an action based upon a policy of accident insurance. Plaintiff recovered a verdict and judgment for $2000, the indemnity provided for in the policy, and from that judgment, defendant has appealed. The trial court refused to submit the issue of vexatious refusal to pay to the jury and from that order plaintiff has appealed.

The defendant company insured Emery E. King 'against loss resulting directly and independently of all other causes from bodily injury sustained during the term of this policy and effected solely through accidental means.' It is admitted that insured died on October 17, 1960; that the policy was in full force and effect, and that plaintiff Freda E. King is the named beneficiary.

On October 17, 1960, at about 4:30 p. m. a Santa Fe freight train enroute to Kansas City approached the trestle bridge across Grand River at Dean Lake, Chariton County, Missouri, at 50 miles per hour. There is approximately a one and one-half mile straightway approach to this bridge from the east. The main double-track lines of the Santa Fe Railroad run across this trestle in a generally east-west direction.

The plaintiff, after offering in evidence the policy of insurance and a portion of the death certificate, called to the witness stand Mr. David J. Edwards. Mr. Edwards testified that he resided in Bosworth, Missouri, where he was engaged in the undertaking and furniture business; that he had known Emery E. King for approximately 15 years; that in the afternoon of October 17, 1960, at around 2 o'clock Mr. King came into the witness' store; that 'he (King) said that if he was transferred from Snyder, on the section, to Bosworth, he was going to buy a home there which he had been looking at that day and he was interested in buying some furniture. And he said he didn't intend to drive back and forth because it was too far.' When asked how Mr. King 'appeared with reference to health' the witness replied: 'Well, he was all right as far as I know because he was just like he always was when he came into the store to buy from me, he was the same.' The witness further testified that about 4:50 p. m. that day he was called by the Santa Fe operator from Carrollton to go out and pick up a man that was hurt on the Grand River Bridge; that when he got to the bridge he 'found Mr. King was dead * * * the body was warm, limber * * * and he had no head to speak of except a little bit here (indicating), it was all, I never saw any of the rest of it;' that a Santa Fe train was standing there, and 'there was a pair of oars just a short distance from Mr. King's body.'

Plaintiff also called as a witness Mr. Chester McAfee who resided at Mendon and was a track supervisor for the Santa Fe Railroad. He testified that he had known Mr. King for about 20 years, and was acquainted with the latter's habits in connection with fishing; that 'he (King) kept a boat at the Grand River Bridge'; that the boat was kept 'on the east side' of the bridge and 'the oars on the west side'; that 'ordinarily he (King) drove in on the west side of the bridge and picked them (the oars) up, he ordinarily went across the bridge'; that the train which struck King was 'an extra' or 'nonscheduled' train.

On behalf of defendant Mr. L. B. Hawkins testified that he was the engineer of the freight train; that when the engine was 'roughly five, six or seven hundred feet' from the bridge 'I looked down there and I seen something and I thought it was just a dog; I whistled to scare the dog off. It never moved. Well, I got about eight car lengths (400) feet of it and I see it was a man, and I whistled again and he never moved and then I applied the brakes; it looked to me like he was laying down between the two main lines with he hands up like this (indicating) and his head on the rail.' On cross-examination he testified that it was a 'hazy day'; that the bridge over Grand River has steel beams across its top and sides which cause shadows to be cast, and makes it difficult to distinguish an object from a shadow; that he did not give a series of short whistles which is customary when a person is seen on the track for the reason he 'didn't recognize it being a man in time to do so.' 'Q. And all you could do was put on the brakes, you didn't have time to do nothing? A. That is what i did, yes. Q. So you just got a glimpse of him when you put on the brakes, is that right? A. Yes, sir.'

The testimony of the fireman, Jessey Payne, was substantially the same as that given by Mr. Hawkins, the engineer.

Defendant's first point is that the trial court erred in overruling its motion for a directed verdict at the close of all the evidence.

In passing upon this contention we are bound by certain well established rules which are clearly set out in the case of Winter v. Metropolitan Life Ins. Co., 129 S.W.2d 99, 103 (Mo.App.) as follows:

'It has been held by our Supreme Court that the trial court should never withdraw a case from the jury unless all reasonable men in the honest exercise of their impartial judgment would draw the same conclusion from the facts; and that, under conflicting evidence sufficient to support a verdict for either party, there can be no directed verdict. Parrent v. Mobile & O. R. Co., 334 Mo. 1202, 70 S.W.2d 1068. It has also been held that a demurrer to the evidence can be sustained only when the facts and the evidence and the legitimate inferences therefrom are so strongly against the verdict as to leave no room for reasonable minds to differ. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 953, 954. See also Linderman v. Carmin, 255 Mo. 62, 164 S.W. 614, 615.'

In the case of Meadows v. Pacific Mut. Life Ins. Co., 129 Mo. 76, 31 S.W. 578, the body of the deceased was found mangled on a railroad track. In holding that the plaintiff made a submissible case, the court said:

'The plaintiff showed, beyond controversy, that Daniel Meadows died by violent injuries, which were plainly visible upon his body; that the nature of these injuries left no doubt that they were the sole cause of his death; and proper proofs were made. Here he rested. He had made a prima facie case, unless we are required to presume that, because he was killed by being run over by cars on a railroad track, he was voluntarily exposing himself to unnecessary dangers, and was violating his agreement in regard to being upon a roadbed of a railroad, within the meaning of the policy. Such a presumption would destroy the presumption indulged by the law that Meadows was, at the time, exercising proper care for his safety.' The Court goes on to say (1. c. 583, 584):

'If follows that, by invoking these presumptions, Plaintiff not only established a death by violence, but that his intestate was in the exercise of ordinary care and prudence when he met his death, and that it was caused by accident. Nor is this presumption rebutted by the unexplained fact that his body was found mangled upon a railroad track.'

As was said by this court in Klinginsmith v. Mutual Benefit Health & Accident Ass'n., 228 Mo.App. 229, 64 S.W.2d 705, 706: 'As to the defendant's assignment of error as to the court's refusal to give peremptory instruction, we conclude that, as it was clearly shown that the death was violent, it is for the jury to determine from all the facts and circumstances in evidence as to whether or not the death was accidental.'

As said in Mayhew v. Travelers' Protective Ass'n., 52 S.W.2d 29, 32 (Mo.App.): 'It is well-settled law that in an action on an accident insurance contract, such as is in suit here, the burden is on the plaintiff to show that the death of insured resulted from an accident. But by showing that the cause of death was violent, the plaintiff establishes prima facie that the death was accidental.'

In the case of Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56, the case chiefly relied upon by defendant, the insured was operated on for hernia. There was no evidence of any mischance, slip or mishap nor of any unexpected, unusual, or unforeseen occurrence during the performance of the operation, but the insured died 5 days later from obstruction of the bowel. The court held plaintiff must show something unforeseen, unusual, or unexpected and unintended occurred during the progress of the operation and that this something caused insured's death.

The Caldwell case is clearly not in point with the case at bar, the most obvious difference being the Caldwell case was not concerned with violent death. Also, in the Caldwell case, the insured intended to be operated on, and died as the natural (but not foreseen) result of this act.

The case of Murphy v. Western & Southern Life Ins. Co., 262 S.W.2d 340 (Mo.App.), also relied upon by defendant is not in point. The insured's death was the result of his taking an excessive amount of medicine, which had been prescribed by his physician. The insured knew what he was taking and the only thing unexpected was the result. Thus it was not an accident within the terms of a policy insuring against injury by accidental means.

And the case of Pettit v. United Benefit Life Ins. Co., 277 S.W.2d 857 (Mo.App.), does not support defendant's contention. In that case the court held that plaintiff did not prove a fall, and also failed to prove that death resulted from a fall.

Other cases cited by defendant, by reason of their facts, are also readily distinguishable from the instant case.

Defendant in its brief makes much of the testimony of the engineer and fireman that they did not see the deceased move prior to...