Landau v. Travelers' Ins. Co.

Citation287 S.W. 346
Decision Date08 October 1926
Docket NumberNo. 27006.,27006.
PartiesLANDAU v. TRAVELERS' INS. CO.
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; john McElhinney, Judge.

Action by Amelia C. Landau against the Travelers' Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Joseph C. McAtee and E. McDonald Stevens, both of Clayton, and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

BLAIR, C. J.

Action upon an accident insurance policy brought by the beneficiary for the death of the insured through alleged accidental means. Trial by jury resulted in a verdict for defendant. The trial court refused to grant a new trial, and plaintiff appealed. Our appellate jurisdiction attaches by reason of the amount claimed in the petition.

This is the second appeal in the case. Upon the first trial the jury found for plaintiff. The trial court granted defendant a new trial and plaintiff appealed to this court. Here the order of the court granting a new trial was affirmed, and the cause was remanded for another trial. Landau v. Insurance Co., 305 Mo. 563, 267 S. W. 376. A companion case, upon a policy of accident insurance written by a different company, was also decided by this court. Landau v. Pacific Mut. Life Insurance Co., 305 Mo. 542, 267 S. W. 370. There the same beneficiary recovered judgment for the death of the same insured, and we reversed the judgment and remanded the case.

The petition in the case now before us alleged the issuance and delivery by defendant to insured of its contract of insurance, whereby it insured him in the principal sum of $10,000 against death from injuries suffered through external, violent, and accidental means. In case of death of insured, loss was payable to his daughter Amelia C. Rich (now Landau), the plaintiff. It was alleged that annual renewals, in accordance with the terms of the policy, had increased the principal sum thereof to $15,000. Said policy provided for double indemnity for injury resulting in death through accidental means while insured was a passenger and riding upon a passenger car, etc. The facts attending the injury and death of insured while riding as a passenger upon a street car were set forth, and it was alleged that such death resulted through accidental means. Damages were prayed for in the sum of $30,000, together with interest. It was also alleged that defendant had vexatiously refused to pay the amount due under the policy. Ten per cent. in addition to the principal sum and a reasonable attorney's fee were prayed for on that account.

Among other things, the answer alleged that insured's death was due to suicide, and that defendant was not liable in any sum, under the terms of the policy, for that reason. It was further alleged that the provision for double indemnity did not apply in case the insured sustained an injury while being upon the steps of a street railway car, and that insured was upon the steps of a street car at the time he precipitated himself therefrom. Said answer also pleaded a provision of the policy exempting defendant entirely from liability for injuries or death resulting from voluntary exposure to unnecessary danger, and alleged that insured's fatal injuries were so caused. It was further alleged that said policy did not cover injuries received by insured while leaving a moving conveyance, and that insured's fatal injuries were caused in that manner, and hence that defendant was not liable under the policy. The reply was a general denial.

Morris Rich, the insured, died on June 9, 1919, as the direct result of injuries received in a fall or jump from a moving street car of the Creve Coeur Lake line, near the city of St. Louis. The ultimate issues of fact tried were whether such fall was accidental or was voluntarily brought about by insured with suicidal intent; also, if such fall was accidental, whether it was the result of voluntary exposure on the part of insured to unnecessary danger.

Insured was 69 years of age. He lived in St. Louis with the plaintiff, who was his only child, and her husband and their infant son. There was evidence on the part of plaintiff tending to show that insured was financially well-to-do, healthy, happy, exceedingly fond of his daughter and grandson, contented with life, and an earnest adherent of the Hebrew faith. From such testimony no motive for suicide could be deduced.

Defendant offered testimony tending to show that insured had undergone treatment for syphilis, and was threatened with locomotor ataxia, and was living in constant dread of that disease and its effects and the disgrace which knowledge of his affliction with such disease and its cause would bring upon him and his family. The purpose of such testimony was to show a motive for suicide.

There was testimony tending to prove that insured boarded one of the "moonlight" cars of the street car company about noon on the day of his death, and, without getting off said car, made two complete round trips between Delmar Garden and Creve Occur Lake, each round trip consuming about 80 minutes. The crew operating the street car then changed, but insured remained on the car and rode to Creve Our Lake a third time, and stayed upon the car and started hack toward Delmar Garden a third time.

The fatal injuries of insured were received at a bridge over the Rock Island Railroad, known as the Colorago Bridge, at a point about 1½ miles east of Creve Occur Lake, As the street car, moving at a speed of 15 to 20 miles per hour, approached and was about to enter upon said bridge, insured left his seat. about the second from the rear, and stepped down upon the running board, which extended along the full length of the car and below the floor of the car, and either fell or jumped from said running board. He thereby received injuries which caused his death the same day. The street car was an open or summer car, and seated about 100 passengers. The seats extended clear across the car. Access to any particular seat could only be had from the running board at the right side of the car. Admission to or exit from the car could only be obtained from the right side. A heavy wire screen guard closed the left side. There was no way to change from one seat to another in the car without stepping down upon the running board at the right side, unless one stepped over from one seat to another. Sixteen or seventeen passengers were on the car at the time.

The facts immediately preceding the fall by, and fatal injury to, insured were testified to at the first trial by certain witnesses introduced by plaintiff. Upon the former appeal we held that, if the new trial was granted upon the ground that a demurrer to the evidence should have been sustained, the trial court's action in granting such a new trial was fully warranted. 305 Mo. 563, 267 S. W. p. 377, column 1. Upon the second trial and doubtless in view of such ruling, plaintiff did not call any of the eyewitnesses used by her at the first trial. She called Conductor Youngblood and one Barbee instead, and defendant called as its witnesses the witnesses used by plaintiff upon the first trial and other witnesses. The testimony of Mrs. Youngblood, a witness used by plaintiff at the first trial, was read to the jury by defendant, as she died subsequent to the first trial.

Conductor Youngblood testified that he was sitting with his wife in the seat next in front of insured. He saw insured get up from his seat and look ahead along the track and then sit down. He got up again, and witness warned him that the car was approaching the bridge and that they were in a dangerous place. Insured said he wanted to change his seat. He said insured got up from his seat and stepped down upon the running board of the car facing the car and holding the handles at the end of the seats and made one or two short steps forward, and then witness saw "his shoulder go down—give way"; then, "he went down, and his hands in the air." The witness said insured "fell off," but the court struck that out as a conclusion. In answer to the request to show the jury how insured went down, witness said: "When I saw his outside shoulder give way, or give down, why his feet went off, and he went off with his hands raised." Witness did not see insured strike the ground beneath and to one side of the bridge.

William H. Barbee was called by plaintiff. The substance of his testimony as to the movements of insured, just prior to the time he fell or stepped off the car, has been correctly stated by plaintiff as follows:

"As I looked back I saw the man whom I afterwards found out to be Mr. Rich. He was in the next seat behind the conductor and this lady, the very first seat back of them. I saw him (Rich) arise and step out on the running board. He stepped down with his back away from the car and faced towards the car. He took hold of the regular posts, the handholds or grabirons, as they are termed. After he got down there he proceeded a step forward. When he stepped down he had to hold with both hands. He proceeded forward a step and moved his left hand up to where the right hand was and was going to reach. (Interruption.) The right hand was extended out towards the next grabiron. While the right hand was extended out there in that position, I noticed about his body. It was a sudden drop. The right hand, the hand that was outstretched, shot upward. The body dropped. At the time I saw the body drop it was a very sudden drop. The movement of the body was such that it somewhat turned away from the car, not a full turn, but perhaps 45 degrees, not facing all the way out to the car, but there was a slight turn of the body. When the body turned in the way I have described, the left hand had hold of the grabiron until the hand came loose and the body went straight downward."

The testimony offered by defendant need not be detailed. It was substantially the same...

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