St. Clair v. Washington Fidelity Nat. Ins. Co.

• Decision Date: 07 January 1936
• Docket Number: No. 23472.,23472.
• Parties: ST. CLAIR v. WASHINGTON FIDELITY NAT. INS. CO.
• Court: Missouri Court of Appeals

89 S.W.2d 85

ST. CLAIR v. WASHINGTON FIDELITY NAT. INS. CO.

No. 23472.

St. Louis Court of Appeals. Missouri.

January 7, 1936.

Rehearing Denied January 21, 1936.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Suit by Anna St. Clair against the Washington Fidelity National Insurance Company. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded, with directions to enter new judgment provided plaintiff entered remittitur, otherwise reversed and remanded for new trial.

Martin Farrow, of St. Louis, for appellant.

Albert E. Hausman, of St. Louis, for respondent.

SUTTON, Commissioner.

This is a suit on an accident insurance policy.

The petition alleges that the policy was issued on October 4, 1926, on the life of Tom St. Clair, in the sum of $1,000, payable to plaintiff in the event of the death of the insured resulting directly and independently of all other causes from injuries effected through external, violent, and accidental means; that on July 5, 1931, insured was accidentally killed in a collision between an automobile in which he was riding and a street car. It also charges vexatious refusal to pay the loss.

The answer denies generally the allegations of the petition, and sets up, by way of affirmative defense, the provision of the policy that accidental death indemnity shall not be payable for death occurring as a result of injury sustained by the insured while violating any law, and charges that the insured's death was caused by a collision between a street car traveling east on St. Louis avenue in the city of St. Louis, and the automobile he was driving west on said avenue, and that the insured violated the Missouri Statutes in that without exercising the highest degree of care he failed to slow down or stop his automobile or turn it to the right so as to avoid colliding with the street car, but operated the automobile along the street and near the center line and not as near as practicable to the right-hand side thereof, at a rate of speed, in excess of thirty miles per hour, that endangered said automobile and said street car and the persons respectively riding therein.

The reply is a general denial.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $1,000 for loss sustained under the policy, $154.51 as interest, $100 as damages for vexatious refusal to pay the loss, and $300 for attorney's fees, aggregating $1,554.51. Defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence. In support of this assignment, defendant insists (1) that there is no evidence to show that the death of the insured resulted from accidental means, within the meaning of the policy; and (2) that the evidence shows that the death of the insured resulted from his violation of the statute. Sections 7775, 7777(b), and 7786(d), R.S. 1929, Mo.St.Ann., §§ 7775, 7777(b), and 7786(d), pp. 5197, 5213, and 5240.

The evidence shows that the collision which resulted in the insured's death occured on St. Louis avenue, just east of Union avenue, in the city of St. Louis. St. Louis avenue runs east and west, and intersects Union avenue, which runs north and south. There are double street car tracks in the middle of St. Louis avenue. Eastbound cars run on the south track and westbound cars on the north track. St. Louis avenue is about 35 feet wide. On the occasion of the collision insured was driving west on the north side of St. Louis avenue, and the street car, with which the insured's automobile collided, was traveling east on the eastbound track. One Diedrich was riding in the automobile with the insured as a guest. As the automobile was proceeding west on the north side of the street, it suddenly turned to the south across the street car tracks in front of the street car, and the collision resulted.

Paul Boland testified, for plaintiff, that when he arrived at the scene of the accident, he saw the insured unconscious, in a sitting position, propped against a wall; that the automobile was smashed up in a bad shape, the body on the right side being bent in a U-shape, pushed in a foot in the center; that he and another man picked the boy up and took him to the hospital; that St. Louis avenue there was paved with brick for a long time, and no repairs made on it for a good while.

Fred Luntzer, a police officer, testified, for plaintiff, that when he arrived at the scene of the accident at about 8:30 a. m., the street car was there with the left front platform damaged; that the body of the automobile was badly damaged on the right side, and was standing crosswise in the street pointed south; that the rear bumper of the automobile was not clear of the car tracks, and the front part of the automobile was at the curb; that the automobile was struck in the center bending the frame at the seat on the right side about a foot and a half deep in a V-shape; that the street there was paved with hard red brick; that the street car tracks in numerous places were depressed from two to four or four and one-half inches below the brick paving, and the paving outside the tracks was extra rough on account of heavy hauling there; that he had fourteen years' experience in driving automobiles of different makes; that driving an automobile from forty to sixty miles per hour, if it was in first-class condition, on a rough street like St. Louis avenue would have no effect on the control, none except the tires.

William A....