Landau v. Travelers' Ins. Co.

• Decision Date: 25 November 1924
• Docket Number: No. 23290.,23290.
• Citation: 267 S.W. 376
• Parties: LANDAU v. TRAVELERS' INS. CO.
• Court: Missouri Supreme Court

267 S.W. 376

LANDAU v. TRAVELERS' INS. CO.

No. 23290.

Supreme Court of Missouri, in Banc.

November 25, 1924.

Motion for Rehearing Denied December 18, 1924.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Action by Amelia C. Landau against the Travelers' Insurance Company. Verdict for plaintiff, and from an order granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

Jno. L. Burns and D. E. Killiam, both of Troy, and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Creech & Penn, of Troy, and Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

RAGLAND, J.

This is a suit on a policy of accident insurance. The appeal in this case and that in the case of Landau v. Pacific Mutual Life Insurance Co., 267 S. W. 370, decided at this term, were argued and submitted together. While the issues were slightly different in the two cases, the evidence in each discloses substantially the same state of facts.

As the ground of defendant's liability under the provisions of the policy, the petition alleged:

"That the death of the said Morris Rich occurred on or about the 9th day of June, 1919, and resulted solely from bodily injuries effected directly and independently of all other causes through external, violent, and accidental means, to wit:

"The insured was engaged in riding upon a Creve Cœur Lake street car, returning from the lake to the city of St. Louis, at a point about 1 ½ miles east of the lake, when and where he attempted to change his seat on the car and stepped into the side passageway of said car, and while being in and upon said passageway and in the act of going from one part of the car to another for that purpose, he accidentally fell from the car, which resulted in the following bodily injuries, to wit: Badly crushed leg and severe nervous shock and loss of blood, which caused the death of the insured on said 9th day of June, A. D. 1919."

The answer denied that the insured's death was effected through accidental means, but averred that, on the contrary, it was the result of suicide. An affirmative defense, based on a provision of the policy, was also pleaded, to the effect that the insured's injury and death resulted from voluntary exposure to unnecessary danger.

The jury found the issues for plaintiff and. returned a verdict accordingly. On defendant's motion the verdict was set aside and a new trial granted. From the order granting a new trial plaintiff prosecutes this appeal.

Among other grounds set forth in the motion for a new trial, it was alleged that the court erred in refusing the instruction in the nature of a demurrer to the evidence, offered by defendant at the close of all the testimony, and that the verdict was against the weight of the evidence. The order allowing a new trial did not specify the ground or grounds on which the new trial was granted. In passing on the motion, however, the court delivered itself orally as follows:

"This is a $15,000 suit on accident insurance policy. It was strongly urged that the deceased, Morris Rich, met his death by willfully excluded by the court, would, if they had jumping from a moving street car down over a trestle some 20 feet to his death, and the additional defense that voids the policy, if true, that the deceased voluntarily moved from a place of safety to one of peril, to one of great danger.

"The facts in this case are that this man, Morris Rich, was on a street car, a car not filled with passengers,' but where seats could readily be obtained among seats that were of the same construction, the same degree of comfort. That he occupied a seat where he was safe for the greater portion of the time of his voyage or trip over this street car line; that while or just before he approached this trestle from which he fell or leaped, as the case be, he got up and looked ahead and sat and when they were moving over the trestle, or starting over, he was seen to move from his seat, where he was safe, down onto the running board of this car. This running board was out, perhaps, flush, or about flush, the open way 20 feet to the bottom of this valley that this trestle spanned over the Rock Island Railroad at that point. The evidence was that he turned about on that running board, holding the uprights of the car with each hand, one hand gave away first when his body turned right about, facing from the car or out into the open of this death fall that he was about to take or receive, when he turned the other hand aloose from the upright, and was seen to go out with his hands stretched up over his head to his death.

"So the case is made from the witnesses by the plaintiff and defendant, by the evidence in this case from both sides; most of the witnesses say that he jumped, or that he left the car as one will leave a car voluntarily. Under those statements of the witnesses, it is up to the court and jury to say whether or not this man, Rich, met his death by reason of violence from some external cause causing his death. That would seem to be a perplexing proposition of itself to a jury and a court.

"That issue makes a very, very close case as to whether or not the evidence would justify a judgment for the claimant, but when to that issue is added the further issue, the clause in the policy that voids it if a person riding on a steam or electric railway or other vehicles for that matter, leaves a place of safety and voluntarily assumes one of great peril or hazard, unnecessarily assumed, when that is added to the other issue, the court finds it impossible to sustain the verdict, and will set the verdict aside."

From the statement by the court it is not clear whether the new trial was granted on the ground that a verdict should have been for the defendant, or on the ground that the verdict was against the weight of the evidence. If on the latter ground, the ruling is conclusive; if on the ground that the evidence was not sufficient to show that the insured's death was due to accidental means (and that was the only ground upon which a demurrer to the evidence could have been sustained), the ruling was fully warranted. Landau v. Pacific Mut. Ins. Co., supra. However, certain statements made by the insured immediately following his injury, excluded by the court, would, if they had been admitted, have made a case for the jury on the issue of accident. The witnesses were not entirely clear as to just what the insured said. As best we can gather from the record, however, the material statements made by him were these, "I decided to change my seat in the car," and, "I fell off. I went to change seats." These statements were excluded on the ground that they were hearsay and self-serving. The propriety of that ruling was not raised on the record in the Pacific Mutual Insurance Co. Case, but it is properly challenged here.

The opinion in the Pacific Mutual Insurance Company Case should be read in connection with this for a statement of the facts generally. Only those will be restated which have an immediate bearing in characterizing the statements in question. While the insured was in the act of falling, or jumping, from the car, some of the women passengers screamed; the car was brought to a stop after it had passed over the bridge and run some 200 feet. The motorman then backed the car to the end of the bridge, got off, and walked back across the bridge followed by the two passengers, the witnesses De Armas and Blakely. After crossing the bridge, they started down the embankment toward the insured, who lay motionless at the bottom of the ravine. As they were approaching him, some one on the bridge said, "He is dead." The insured said, "No, I am not dead." On coming up to him, the motorman by three successive questions obtained from him his name, place of residence, and telephone number. He then asked, "How did this happen?" The...