Powell v. Travelers' Protective Ass'n

• Decision Date: 07 November 1911
• Parties: POWELL v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.
• Court: Missouri Court of Appeals

140 S.W. 939

160 Mo. A. 571

POWELL v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

Rehearing Denied November 25, 1911.

1. INSURANCE (§ 668) — ACCIDENT INSURANCE — ACTIONS — JURY QUESTION.

Evidence in an action on an accident insurance policy held to make it a jury question whether insured, who was struck by a train, met his death by voluntary or unnecessary exposure to danger.

2. INSURANCE (§ 461) — ACCIDENT INSURANCE — VOLUNTARY EXPOSURE TO DANGER.

In order to bar a recovery under a provision of an accident insurance policy, avoiding the policy in case of a voluntary or unnecessary exposure to danger, the voluntary exposure must have been with respect to a danger so obvious that no ordinarily prudent person would have incurred it.

3. INSURANCE (§ 659) — ACCIDENT INSURANCE — ACTION ON POLICY — ADMISSION OF EVIDENCE.

In an action on an accident insurance policy, claimed to have been forfeited by insured's voluntary or unnecessary exposure to danger, contrary to the policy, in which it appeared that insured was killed by a train after he had been put off of another train, on which he claimed to have been riding as a passenger, evidence as to the details of the difficulty which took place between insured and the conductor who ejected him was properly excluded, only evidence as to his ejectment and the manner in which he fell to the ground being admissible on the question of his mental and physical condition when struck by the other train.

4. INSURANCE (§ 659) — ACCIDENT INSURANCE — ACTIONS — ADMISSION OF EVIDENCE.

In an action on an accident insurance policy to recover for insured's death by being struck by a railroad train while walking on the tracks after having been ejected from another train, evidence that it was a common thing for people to walk on the tracks at the place insured was walking was properly excluded in absence of an offer to show that insured knew of such use of the tracks.

5. EVIDENCE (§ 67) — PRESUMPTIONS — CONTINUANCE OF EXISTING CONDITION.

It is presumed that a physical or mental condition, shown to exist, continued until a change therein is shown.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Nannie C. Powell against the Travelers' Protective Association of America. From a judgment of nonsuit, plaintiff appealed to the Supreme Court, and the case was transferred to the St. Louis Court of Appeals. Reversed and remanded.

Wilfley, Wilfley, McIntyre & Nardin, for appellant. Thos. Rutledge, for respondent.

REYNOLDS, P. J.

This action was brought in the circuit court of the city of St. Louis, by Mrs. Nannie C. Powell, widow of William B. Powell, against the Travelers' Protective Association of America, of which he was a member at the time of his death, to recover $5,000 on a policy or certificate issued to the husband by defendant. At the conclusion of the evidence for plaintiff, the court instructed the jury that under the evidence and pleadings in the case, plaintiff was not entitled to recover. Plaintiff, excepting, took a nonsuit with leave to move to set it aside, and that being filed and overruled and exception saved, and motion for new trial duly filed and overruled, plaintiff excepting, perfected her appeal to the Supreme Court. The amount in controversy being $5,000, and the judgment of nonsuit having been entered in November, 1906, the case was appealed to the Supreme Court, it then having jurisdiction of cases involving that amount. This jurisdictional amount having been changed pending the submission of the case to the Supreme Court by the act of the General Assembly of the state (Laws 1909, p. 397, now section 3937, R. S. 1909), the Supreme Court transferred the case to this court.

A comparison of the statement of the case made by counsel for appellant with the abstract of the record, satisfies us that that statement is fair. In fact the statement filed by the learned counsel for respondent, while differing from that made by counsel for appellant, in that it sets out some of the testimony verbatim instead of in narrative form, or according to its effect, as is done by counsel for appellant, for all practical purposes agrees with the statement made by counsel for appellant. We accordingly feel warranted in following that statement substantially as so made. There is no contention over the fact that William B. Powell was killed on July 23, 1905, by being struck by a train on the St. Louis & San Francisco Railroad, in the city of Pacific, Missouri.

The petition in the case states the membership of William B. Powell in the defendant company; the provision of the by-laws providing for a payment of five thousand ($5,000) dollars in case of accidental injury or death, and that Powell was killed by being struck by a train and prays judgment for five thousand ($5,000) dollars.

The answer alleges the provision of the by-laws that defendant should not be liable in case of death or disability caused wholly or in part by voluntary or unnecessary exposure to danger, and continues with the allegation that said William B. Powell did voluntarily and unnecessarily expose himself to danger by walking on the railroad tracks of the St. Louis and San Francisco Railway, over which trains were passing with frequency, and that as a consequence of such voluntary and unnecessary exposure he was run over and killed.

The rules appearing on the back of the certificate of membership introduced in evidence, have the following language touching the point at issue in this case:

"The member hereby agrees that the following rules shall be observed; that the Travelers Protective Association of America shall not be liable for injuries incurred by a member in occupations more hazardous * * * than specified in his application for membership; or in case * * * of death or disability caused wholly or in part by * * * voluntary or unnecessary exposure to danger."

On the 23rd day of July, 1905, Powell boarded a train of the St. Louis and San Francisco Railway, at Pacific, Missouri, the train being an excursion train on its way to St. Louis. When the train was leaving Pacific, the conductor approached Powell and asked him for his ticket. Plaintiff here sought to show the controversy which took place between the conductor and Powell, but that evidence was excluded by the court, the ruling being that plaintiff might only show that he was put off the train against his will. Plaintiff was allowed to show, and did show by several witnesses, that when the train was between a quarter and a half mile east of the Union Depot at Pacific, and near the Frisco pump house, marked on the plat introduced in evidence, the conductor and brakeman of the train, forcibly ejected Mr. Powell from the train. This was about nine forty-five o'clock in the evening, and the evidence is that it was a clear night, the stars shining, but no moon. From the blue print introduced in evidence, made from a plat drawn by an engineer on an accurate scale, showing the physical conditions of the St. Louis and San Francisco track from a point east of where the injury occurred, to the Union Station at Pacific, as well as from the testimony of witnesses in the case, it appears that at the place where Mr. Powell was ejected from the train the road passes near the Meramec river, and on both sides of the track in the vicinity where he was put off, there are ditches or "borrow pits," a little over eight feet in depth; in other words, the track at this place is built on an embankment, or fill. The witnesses testified that at the place where Powell was put off, the embankment was eight to ten feet high, measured from the bottom of the ditches on either side, and that Powell was thrown off the steps of the car, head foremost, down the embankment.

At the place where Powell was ejected from the train there was no light, it being entirely outside of the city of Pacific, something like fifteen hundred feet, or a little over a quarter of a mile from the last house east along the railroad in Pacific. On one side of the Frisco track, and less than one hundred feet from the track in the vicinity where Powell was put off the train, runs the Meramec river. On the other side of the Frisco track, across the ditch, is the track of the Missouri Pacific Railway, and beyond that is a small creek which runs parallel with the Missouri Pacific track for some distance west of the vicinity where he was put off, crossing the track and emptying into the Meramec river at a point a short distance east of the Frisco pump house, or about in the vicinity where witnesses testified Powell was put off the train. The ditch, or "borrow pit," on the south side of the track, extends westward beyond the point of accident varying from eight and a half feet in the vicinity where he was put off the train, to five and a half feet at the point of the accident. The ditch on the north side of the track extends westward to the point where a transfer or switch track connects with the Missouri...