Robyn v. New Amsterdam Casualty Co.

• Decision Date: 02 October 1923
• Docket Number: No. 17569.,17569.
• Citation: 257 S.W. 1065
• Parties: ROBYN v. NEW AMSTERDAM CASUALTY CO.
• Court: Missouri Court of Appeals

257 S.W. 1065

ROBYN v. NEW AMSTERDAM CASUALTY CO.

No. 17569.

St. Louis Court of Appeals. Missouri.

October 2, 1923.

Rehearing Denied January 26, 1924.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Frieda Robyn against the New Amsterdam Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John T. Sluggett, Jr., of St. Louis, and A. E. L. Gardner, of Clayton, for appellant. Charles E. Morrow, of St. Louis, for respondent.

BRUERE, C.

This is an action upon an accident insurance policy issued by the defendant to Gus A. Robyn, in which the plaintiff, respondent here, was named as beneficiary. The cause was tried before the court and a jury, and resulted in a verdict for the amount of the policy with interest, and 10 per cent, damages and $1,250 attorney's fees for vexatious refusal to pay. From a judgment of $7,490 entered on the verdict, the defendant prosecutes this appeal.

The petition, in addition to the usual allegations, alleges that on the 11th day of March, 1919, the insured, while riding as a passenger in and on a street car and public conveyance owned and operated by the United Railways Company of St. Louis, and while in a place regularly provided for the use of passengers, fell from said street car to the street, whereby he received bodily injuries which caused his death on the 30th day of March, 1919. It further prays judgment against the defendant for the sum of $5,200, together with interest thereon, 10 per cent. damages for vexatious refusal to pay, attorney's fees, and costs.

The allegations in the answer pertinent to the question raised here, are as follows: It admits the issue of the policy and the death of the insured on the date alleged. It alleges that it is provided in the policy that the defendant shall not be liable for any loss as the result of any injury sustained by the insured while getting on or off any public conveyance or while being upon the step or steps thereof; that whatever injuries, if any, Gus A. Robyn sustained on the 11th day of March, 1919, were received by him while getting off a public conveyance, to wit, a street car in the city of St. Louis, Mo., and while he was on the step or steps of said car. The answer then denies each and every allegation of the petition.

The stipulations and conditions of the policy sued on, pertinent to the questions raised here, are as follows:

"This policy provides indemnity for loss of life, limb, sight or time by accidental means, to the extent herein provided.

"New Amsterdam Casualty Company, hereinafter called the company, in consideration of five dollars premium, for a period of twelve months from noon standard time on the 21st day of August, 1914. Agrees to pay to Gus A. Robyn, * * * or in the event of his accidental death, to Frieda Robyn, his daughter, the beneficiary under this policy, if surviving, otherwise to the executors or administrators of the insured, for any loss specified herein which is sustained by the insured in the manner stipulated in (a), (b), (c), (d), (e), (f), or (g) as follows:

"(a) While riding as a passenger in or on a public conveyance regularly provided by a common carrier for the transportation of passengers and in a place regularly provided for the use of passengers during such transportation, * * * or * * *

"(g) In consequence of cyclone or tornadoes —subject to the provisions, definitions, statements and limitations set forth, the indemnities hereinafter set forth.

"Indemnities.

"A. If bodily injuries not intentionally selfinflicted, sustained as" stipulated' above, which independently of all other causes are effected solely and exclusively by accidental means, and which are hereinafter referred to as such injuries, not excluding such injuries resulting directly from a bodily injury caused or contributed to wholly or partly, directly or indirectly, by blood poisoning, shall result within ninety days of the event causing such injuries, in any of the losses following, numbered 2, 3, 4, 5, 3, 7 and 8, the company will pay the sum set opposite such loss; or

"B. If such injuries during a period of total disability by accident as herein defined and within fifty two weeks of the event causing such injuries, shall result in one of the numbered losses above specified, then the company will pay the sum set opposite such loss in addition to the weekly indemnity due hereunder for such period of total disability.

"1. For loss of life, $5,000.00.

"2. For loss of both hands by actual separation thereof at or above the wrist, $5,000.00. * * *

"Standard Provisions.

* * * * * * * *

"4. Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury.

"5. Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the company at its Home Office in New York City. * * *

"Other Provisions.

* * * * * * * * *

"22. No claim shall be valid for more than one of the losses specified in this policy under paragraphs A, B, C and D except that a claim may be valid under paragraph C and also under paragraph D; nor shall the company be liable for any loss caused or contributed to by illness or disease or disappearance or by suicide, whether the insured be sane or insane; nor for any claim resulting from an accident which does not occur during the period of this policy; nor for any injury sustained by any person in the discharge of any duty in connection with the running or operation of a public conveyance or elevator or while working on or about said conveyance or elevator; nor for any injury sustained while riding in or on an elevator in any mine; nor for any injury sustained while getting on or off any public conveyance or while being upon the step or steps thereof; nor for hernia, the consequences thereof or any injury contributed to thereby; nor for any injury, fatal or otherwise, sustained while under the influence of intoxicants or narcotics or while participating in or in consequence of having participated in aeronautics or aviation, or due directly or in directly to fits, vertigo, sleep-walking, ptomaine poisoning or voluntary exposure to unnecessary danger. Payment of weekly indemnity hereunder on account of disability resulting from any one accident shall in no case exceed in the aggregate five thousand dollars.

"23. This policy shall cover the insured only as to injuries sustained within the limits of the United States, Canada or Europe, or while traveling as a passenger by regular steamship lines between such places. * * * "

The evidence on the part of the plaintiff relating to the death of the deceased tends to show the following facts: The deceased, at the time of his death, was a resident of Webster Groves, St. Louis county, Mo., and lived there with his daughter, the respondent herein. At about 7 o'clock in the evening of March n, 1919, he left his home, and an hour later arrived at the home of Mr. McCaffery, who at the time lived at 3533 Page avenue, in the city of St. Louis, and on the north side of Page avenue and about 85 feet east of the intersection of Page and Grand avenues. Grand avenue runs north and south. Page avenue is 60 feet wide and runs east and west. In going to the McCaffery home the deceased rode on a north-bound Grand avenue street car. The street car stop for said car is on the south side of Page avenue, on Grand, and to reach the McCaffery home, after leaving the street car, the deceased was required to cross Page avenue and then walk east 85 feet. When the deceased reached the McCaffery home he was met at the door by Mr. McCaffery, who observed that Mr. Robyn was very much excited, his clothing covered with dirt, his hands bruised and swollen, and a little blood trickling down from a wound on his face. Mr. McCaffery told him to quiet himself down, and invited him in and gave him a towel and brush to clean himself. The deceased remained at the McCaffery home and participated in a directors' meeting until about 9 o'clock and then left to return home. His daughter, the respondent herein, testified that when the deceased arrived home he was very pale and nervous, and that there was a wound on his temple from which blood was trickling; that he complained of great pains in his head and all over his body; that she assisted him to wash the blood from his hands and face and put him to bed, and that all through the night he was complaining of pains in his head.

The deceased was a clerk in the post office at St. Louis, and was at the time of the accident 66 years of age. He went to his work, as usual, each day after the accident, but complained continually of pains in his head. On the afternoon of March 24. 1919, he returned home from his work and complained of severe pains in his head and all over his body, and was in such a condition that he could hardly walk. Dr. Baker was called, and found him suffering from a ruptured blood vessel or hemorrhage in the brain, cerebral hemorrhage. He became unconcious on the 26th day of March, and gradually grew worse, and died on the 30th day of March, 1919.

Dr. Baker testified that Mr. Robyn's condition, the progress of the disease, and the paralysis intervening and following it showed there was hemorrhage going on all the time; that at first it was very little, but it gradually increased until it produced complete paralysis of his body; that there was no way to positively determine what produced the condition which resulted in Mr. Robyn's death, but, from what he saw of the condition of the deceased and the progress of his trouble, he was satisfied it might very reasonably have been caused by the fall from the street car.

At the trial the witness Harvey McCaffery was permitted, over the objections of the defendant, to testify to the following conversation had with Mr. Robyn after Mr. Robyn arrived at the McCaffery home some time...