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 |
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.
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:
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:
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, 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...
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