Schmohl v. Travelers' Ins. Co.

• Decision Date: 02 October 1916
• Docket Number: No. 11513.,11513.
• Citation: 189 S.W. 597
• Parties: SCHMOHL v. TRAVELERS' INS. CO.
• Court: Missouri Court of Appeals

189 S.W. 597

SCHMOHL v. TRAVELERS' INS. CO.

No. 11513.

Kansas City Court of Appeals. Missouri.

October 2, 1916.

Rehearing Denied November 6, 1916.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

"Not to be officially published."

Action by Arthur J. Schmohl against the Travelers' Insurance Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed, conforming to the decision of the Supreme Court reported in 266 Mo. 580, 182 S. W. 740.

See, also, 177 S. W. 1108.

O. C. Mosman, of Kansas City, and Vinton Pike, of St. Joseph, for appellant. Robert A. Brown and A. L. Guitar, both of St. Joseph, for respondent.

TRIMBLE, J.

On the 7th of June, 1912, the defendant insurance company issued to plaintiff an accident insurance policy, No. F. B-4420, insuring him in the sum of $10,000 against accidental loss of life, and certain bodily injuries, "while a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps, or running board of railway or street railway cars)." The indemnity, in case of insured's loss of life, was payable to his mother, Anna Schmohl, as beneficiary. Simultaneously therewith, but on a separate sheet of paper attached to said policy, the said defendant issued a "supplement," wherein the company insured "Anna Schmohl, the mother of insured under Policy No. F.B-4420 issued to Arthur J. Schmohl," in the principal sum of $5,000, against accidental loss of life, and certain specified bodily injuries, "while riding as a passenger in a railway passenger car." The supplement provided that:

"Indemnity for loss of life shall be paid to the insured under the policy to which this supplement is attached. All other benefits shall be paid to the person insured by this supplement."

It further provided that:

"The insurance under this supplement shall commence on the date below, and end when the insurance under the policy ends, or at such earlier date as the person insured by this supplement shall attain age 60, and is subject to all the terms and conditions of the policy."

The supplement contained the still further provision:

"That the person insured by this supplement signs consent below to the insurance herein given and warrants all the following statements to be true."

Then follow certain statements giving the age, height, weight, residence, occupation, physical condition of Mrs. Schmohl, and her relation to the insured. The supplement was signed by the company's president and department secretary, and countersigned by its cashier in the same way as was the policy. Below said signatures is the following:

"I consent hereto, and warrant the above statements to be true. [Signed] Anna Schmohl."

No additional premium was required to be paid by the supplement; the stipulated premium in the policy to plaintiff being the consideration for the obligations assumed by defendant in both policy and supplement.

On June 20, 1913, while both obligations were in full force and effect, the mother, Anna Schmohl, was accidentally killed by falling or being thrown from the platform of a passenger train, on which she was, at the time, riding as a passenger from Esslingen to Nuertengen, Germany.

Proof of the death of said Anna Schmohl, and of the circumstances under which it occurred, were, in due time, submitted by plaintiff to the company, and demand was made for the $5,000 provided for in the supplement. The company denied liability and refused to pay, contending that the injuries causing the death of said Anna Schmohl were not sustained by her "while riding as a passenger in a railway passenger car" within the meaning of said policy and supplement. Thereupon plaintiff brought this suit to recover the indemnity.

The petition is not set out in full in the record, but the abstract states that it alleged the issuance by defendant to plaintiff of the policy of insurance numbered F.B.-4420, wherein it agreed to pay plaintiff, in the event of the death of his mother, Anna Schmohl, resulting from violent and accidental means while riding as a passenger in a railway passenger car, the sum of $5,000, which policy was attached to the petition as Exhibit A; that on June 20, 1913, while riding as a passenger in such a car, the said Anna Schmohl was killed by falling from said car; that full proof of death was made and payment demanded, which defendant, without just cause, refused to do; wherefore judgment for said sum, with interest, penalties, and costs, was prayed. Defendant entered its voluntary appearance, and filed answer denying each and every allegation of the petition.

The parties waived a jury and submitted the cause to the trial court upon an agreed statement of facts, which, in addition to all the other facts hereinabove set out, detailed the circumstances under which Mrs. Schmohl met her death and set forth the respective positions of plaintiff and defendant and the precise point in controversy which they sought to have adjudicated.

With reference to the circumstances under which Mrs. Schmohl met her death, the agreed statement of facts shows that the cars of the train on which she was traveling were similar, in form and arrangement, to the ordinary passenger coach in this country, except that the cars have no vestibules and the platforms at the ends of the cars are not inclosed. When the cars are coupled, the platforms do not approach close to each other, but a space of some width is left between them which is bridged by a piece of sheet iron extending from one platform to the other, slightly arched in the center, and with no chains or guards to protect a person in going from one car to another on said bridge. A sign was posted on the inside of the door of each car notifying the passengers that "stepping onto the platform and stepboards while the car is in motion is forbidden."

The agreed statement of facts also shows that Mrs. Schmohl entered said car and was seated therein as a passenger where passengers were provided with seats and accustomed to ride; that she was accompanied by a friend, Frau Pauline Frank; that while they were seated in the car, and after the train had started, Mrs. Schmohl announced her intention of going into the next car to see if a mutual friend, whom they were expecting to use the same train, was there. Her friend tried to persuade her not to do so, telling her it was forbidden to leave the car while the train was in motion, and that there was a penalty for so doing. Mrs. Schmohl replied that she always did it in America, and, leaving her seat, went through the door in the end of the car onto the platform while the train was in motion at a high rate of speed. No one saw her fall from the train, nor does it appear, nor is it known, by what means or from what cause she fell from the platform, but it is agreed that after she passed through the door onto the platform, and while thereon, she fell or was thrown from the train to the ground, receiving injuries from which she instantly died.

Paragraph 7 of the agreed statement of facts says:

"The contention between the parties arises upon the construction to be given to the beneficiary supplement and particularly to that clause thereof reading `against loss resulting from bodily injuries effected * * * while riding as a passenger in a railway passenger car,' etc.; the plaintiff claiming that it should be held upon the facts stated, that the deceased sustained said injuries while riding as a passenger in a railway passenger car within the meaning of the clause quoted, while the defendant claims that it should be held upon such statement of facts that said injuries were not sustained by deceased while riding as a passenger within a railway passenger car within the meaning of said policy and supplement. The policy and supplement attached to plaintiff's petition are to be considered a part of this stipulation as though copied herein."

In paragraph 10 of said stipulation it is said:

"The parties understand that the court must first construe the terms of the policy and supplement, and in so doing and in rendering its decision will not be controlled or influenced by any descriptive word used herein, because the parties themselves are not intending by anything herein contained to agree upon any construction of the policy and supplement so as to determine whether thereunder an insured is riding as a passenger in a railway passenger car when on the platform."

The agreed statement of facts then stipulated that if, on the facts, the law is with plaintiff, he should have judgment for the amount stipulated to be paid by said supplement, with interest and costs of suit, but that if upon said facts the law is with the defendant, judgment should go for it.

The trial court refused all declarations of law asked by defendant which...