Schmohl v. Travelers’ Ins. Co.

• Decision Date: 14 June 1915
• Docket Number: 11513
• Citation: 177 S.W. 1108
• Parties: SCHMOHL v. TRAVELERS’ INS. CO.
• Court: Kansas Court of Appeals

177 S.W. 1108

SCHMOHL v. TRAVELERS’ INS. CO.

No. 11513

Court of Appeals of Missouri, Kansas City

June 14, 1915

Rehearing Denied July 2, 1915.

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

Action by Arthur J. Schmohl against the Travelers’ Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

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.

OPINION

JOHNSON, J.

This is an action on a policy of accident insurance issued by defendant June 7, 1912, and in force at the time of the injury and death of the assured. The defense is that the cause of the injury was one for which the policy provided no indemnity. A jury was waived, the cause was submitted on agreed facts, judgment was rendered for plaintiff, and defendant appealed.

Defendant, for a premium paid by the plaintiff, Arthur J Schmohl, and upon his application, issued to him an accident policy in which his mother, Anna Schmohl, was named as beneficiary, and which, in its "Schedule of Indemnities," provided for the payment of $10,000 to the beneficiary in the event of his death resulting from injuries sustained "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)." Attached to this policy, and as part of the obligations assumed by defendant in consideration of the stipulated premium, was a supplementary policy in which Anna Schmohl, the mother, was the assured and plaintiff the beneficiary. The undertaking of defendant in this "supplement" was "to insure Anna Schmohl, the mother of the insured, under policy No. FB-4420, issued to Arthur J. Schmohl, against loss resulting from bodily injuries effected directly and independently of all other causes through external, violent, and accidental means (suicide sane or insane not included) while riding as a passenger in a railway passenger car or vessel licensed for the transportation of passengers, provided in either case by a common carrier and propelled by mechanical power."

Mrs. Schmohl was accidentally killed in Germany June 20, 1913, while riding as a passenger on a passenger train, and this suit is for the recovery of the indemnity provided in the supplementary policy.

Mrs. Schmohl, accompanied by her friend, Frau Pauline Frank, became a passenger on a train running from Esslingen to Nuertingen. The cars were similar in interior arrangement to the ordinary American passenger coach, but the train was not vestibuled, and the platforms at the ends of the cars were uninclosed. Where two cars were coupled together, there was rather a wide space between the platforms which was spanned by a sheet iron folding bridge slightly arched. A person, in going from one car to the next, would cross this bridge, which was not provided with guards. On the inside of the door of each car a notice was posted which read: "Stepping onto the platform and stepboards while the car is in motion is forbidden."

Mrs. Frank testified that, before boarding the train, Mrs. Schmohl spoke of not feeling well; that she was cold; "that everything around her seemed to dance in a circle; and that she had a feeling as if spiders were running up her legs." After the train started, and while they were seated in the car, Mrs. Schmohl declared her intention of going to the next car, to see if a mutual friend, who was intending to go on that train, were there. Mrs. Frank testified:

"I dissuaded her from doing so, saying that passengers were forbidden to leave the car while the train is in motion, and that a penalty is attached to doing so."

This warning was disregarded. Mrs. Schmohl, replying that "she always does it in America," left her seat and proceeded to the platform. Mrs. Frank observed her as she disappeared through the door. No one saw her fall from the train, and, as stated in the agreed facts, "it does not appear and is not known by what means or from what cause deceased fell or was thrown from said platform or steps." It is agreed that:

"After she had passed through the door onto the platform, and while on the platform aforesaid, she fell or was thrown from the train to the ground, receiving injuries from which she instantly died."

The only reasonable inference that may be drawn from the disclosed facts and circumstances is that the assured accidentally fell or was thrown by the motion of the train while she was endeavoring to pass from one car to another. The burden is upon plaintiff to show that the cause of his mother’s death was accidental and violent. The latter fact being conceded, the existence of the former will be presumed, in the absence of proof to the contrary. In showing a violent cause, plaintiff made out a prima facie case of an accidental cause. Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308; Travelers’ Ins. Co. v. Melick, 65 F. 178, 12 C. C. A. 544, 27 L. R. A. 629; Paul v. Travelers’ Ins. Co., 112 N.Y. 472, 20 N.E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758; Lovelace v. Travelers’ Ins. Co., 126 Mo. 104, 28 S.W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638; Collins v. Fidelity & Casualty Co., 63 Mo.App. 253; Phelan v. Travelers’ Ins. Co., 38 Mo.App. 640; Young v. Railway Mail Ass’n, 126 Mo.App. 335, 103 S.W. 557; U. S. Mutual Accident Ass’n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60; Beile v. Protective Ass’n of America, 155 Mo.App. 629, 135 S.W. 497.

It is conceded the accident occurred while Mrs. Schmohl was riding upon a moving train on the open platform or unguarded bridge, and therefore while she was not in the interior of a passenger car; and the principal question for our solution is whether or not she was "riding as a passenger in a railway passenger car," within the meaning the supplementary policy was intended by the parties to give to that term.

In Æ tna Life Ins. Co. v. Vandecar, 86 F. 282, 30 C. C. A. 48, the policy provided for double indemnity for accidental injury to the assured "while riding as a passenger in a passenger conveyance using steam." Preparatory to leaving the train, the assured left his seat in the car and went to the platform, where he was standing, when a sudden jerk of the train threw him to the ground. In the majority opinion double indemnity was denied on the ground that plaintiff was "not in a passenger conveyance," within the meaning of the policy. The court said:

"They evidently meant to stipulate for the double indemnity while the insured was riding in an exceptionally safe place. One who rides as a passenger in a passenger conveyance using steam occupies such a place. But one who rides on, but not in, such a conveyance, whether on the platform, or on the top of the car, or on the machinery beneath it, occupies a very dangerous place, and the parties neither agreed by the terms of their contract, nor intended to agree, that this double indemnity should be paid to one who rode in such a position. The plain meaning of this provision is that, if the plaintiff is injured while traveling as a passenger in a place in a passenger conveyance (using the motive power mentioned in the contract) assigned for passengers (in this case within the car), the defendant will pay double the amount mentioned in the policy. That the defendant had a right to so limit its liability there can be no doubt. Bigelow v. Insurance Co., 93 U.S. 284 ; Insurance Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360 ; Insurance Co. v. Seaver, 19 Wall. 531 . The words ‘in a passenger conveyance’ were doubtless used advisedly, and for the express purpose of limiting the defendant’s liability. The reason for so doing is at once apparent. The place specified in the contract (‘in a passenger conveyance’) is a place of little or no danger, and the risk assumed is slight, while on the platform of a conveyance using the motive power described in the contract, and especially, as in this case, on the platform of a railway car, is an exceedingly dangerous place when the train, to which the car is attached, is in motion. That riding upon the platforms of railway cars, when trains are in motion, is dangerous, is a matter well understood by the railway companies, and people who are accustomed to traveling by rail, and in order that passengers may be advised of the danger, in almost every passenger car in service upon the various railways of the country, notices are posted in conspicuous places in the car warning passengers that it is dangerous to go upon the platforms of the cars while the train is in motion."

Thayer, Circuit Judge, dissented from that view, which he thought attached undue importance to a single word and was highly technical. He said:

"The fundamental idea intended to be conveyed by this clause of the policy is that a double indemnity will be paid in case of an injury which is within the terms of the policy, provided it is sustained by one while traveling in, by, or on a certain class of public conveyances. In ordinary conversation persons are often heard to say that they came ‘by train,’ or ‘on a train,’ or ‘in a train,’ without intending to indicate by either form of expression the particular place in that conveyance which they occupied. It is hard to believe, therefore, that any special significance was intended to be given by the use of the word ‘in’ in the clause above quoted. If the insurance company had intended to say that it would pay a double indemnity for injuries sustained while traveling by the public conveyances specified only in the event that they were inflicted while the insured was in a given place on one of such conveyances, to wit, on the inside, the language employed would doubtless have been ‘while

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