Powell v. Travelers Protective Association of America
| Decision Date | 07 November 1911 |
| Citation | 140 S.W. 939,160 Mo.App. 571 |
| Parties | NANNIE C. POWELL, Appellant, v. TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted October 20, 1911.
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Wilfley Wilfley, McIntyre & Nardin for appellant.
(1) Death being shown to have resulted from violent, external causes, the presumption is that the deceased was exercising due care for his own safety at the time, and not voluntarily or unnecessarily exposing himself to danger; and the burden is on the defendant to rebut that presumption, and show by positive testimony that the assured was violating conditions of the policy. Jamison v. Casualty Co., 104 Mo.App 306; Meadows v. Ins. Co., 129 Mo. 76; Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Keene v. Accident Ass'n, 161 Mass. 149. (2) Before a peremptory instruction can be given where the burden of proof as to any point in the case rests on one party, that party must prove the point by uncontradicted facts or circumstances so conclusively that a reasonable inference to the contrary is impossible. Ferguson v. Railroad, 123 Mo.App. 590; Buckley v. Kansas City, 156 Mo. 16; Charlton v. Railroad, 200 Mo. 441; Queatham v. Modern Woodmen, 148 Mo.App. 51. (3) Voluntary or unnecessary exposure to injury is not the same as mere inadvertence or negligence. It is a positive, intentional assumption of the known danger unnecessarily. Jamison v. Casualty Co., 104 Mo.App. 306; Bateman v. Ins. Co., 110 Mo.App. 443; Williams v. Accident Ass'n, 133 N.Y. 367; Johnson v. Guaranty Co., 115 Mich. 86; Keene v. Accident Ass'n, 161 Mass. 149; Tuttle v. Ins. Co., 134 Mass. 175; Burkhard v. Ins. Co., 102 Pa. St. 262; U. S. Accident Ass'n v. Hubbell, 56 Ohio State 516, 40 L.R.A. 453; Fidelity & Casualty Co. v. Chambers, 93 Va. 138. (4) The act of plaintiff's deceased husband, in walking on a railroad track from where he was put off the train to the point of accident, cannot be sad, as a matter of law, to constitute voluntary or unnecessary exposure to danger, but the facts of the case as between the deceased, Powell, and the insurance company, make the issue of voluntary or unnecessary exposure to danger a question for the jury. Powell v. Railroad, 229 Mo. 246; Jamison v. Casualty Co., 104 Mo.App. 306; Meadows v. Ins. Co., 129 Mo. 76; Bateman v. Ins. Co., 110 Mo.App. 443; Keene v. Accident Ass'n, 161 Mass. 149; Burkhard v. Ins. Co., 102 Pa. St. 262; Travelers Ass'n v. Accident Co., 10 Manitoba Law Rep. 537; Fidelity & Casualty Co. v. Chambers, 93 Va. 138.
Thomas G. Rutledge for respondent.
(1) Where an accident certificate expressly excepts liability for death resulting from voluntary and unnecessary exposure to danger, and where the facts are undisputed, there can be no recovery when it appears that the assured, possessed of all his faculties, chooses to walk on the main track of a trunk railroad at ten o'clock on a clear starlight night, when he had the choice of several other paths that were perfectly safe leading in the direction he was going and when he was under no imperative or any other necessity to walk there, and when it appears that he was a traveling salesman who lived in the neighborhood and was accustomed to travel over this road every week and knew the frequency with which trains passed over it, and could easily have stepped out from between the rails to a place of safety, and when it appears that he was paying no attention to trains approaching on that track and was not watching out for the dangers incident to the very place along which he was walking, and when it appears that he was not acting with ordinary prudence and was guilty of the grossest negligence. Alter v. Casualty Co., 108 Mo.App. 169; Bean v. Liab. Co., 50 Mo.App. 459; Glass v. Masonic Ass'n, 112 F. 495; Price v. Ins. Co., 99 N.W. 887; Tuttle v. Ins. Co., 134 Mass. 175; Willard v. Ass'n, 169 Mass. 288; Shevlin v. Ass'n, 94 Wis. 180; Ins. Co. v. Taylor, 71 Ill. 135; Ins. Co. v. Jones, 80 Ga. 541; Follis v. Ass'n, 94 Ia. 435. (2) The question resolves itself into one whether or not Mr. Powell in using the railroad as a footpath at night under the facts shown in this case was acting with reasonable and ordinary prudence, and in this respect the analogy from the law of negligence is conclusive that such an act is not that of an ordinarily and reasonably prudent person, and that under the circumstances disclosed by the evidence in this case was the grossest negligence. Engelking v. Railroad, 187 Mo. 158; Loring v. Railroad, 128 Mo. 359; Tanner v. Railroad, 161 Mo. 487; Porter v. Railroad, 199 Mo. 82; Frye v. Railroad, 200 Mo. 377; Koegel v. Railroad, 181 Mo. 379; Davies v. Railroad, 159 Mo. 1; Wheat v. St. Louis, 179 Mo. 572; Barker v. Railroad, 98 Mo. 52; Zimmerman v. Railroad, 71 Mo. 490; Brockschmidt v. Railroad, 205 Mo. 435; Sanguinette v. Railroad, 196 Mo. 466; Stotler v. Railroad, 204 Mo. 619.
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 $ 5000 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 non-suit 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 $ 5000, and the judgment of non-suit 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 ($ 5000) 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 ($ 5000) 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 23d 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 half a 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 9:45 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...
To continue reading
Request your trial