Ward v. Penn Mut. Life Ins. Co.

• Decision Date: 20 December 1961
• Docket Number: No. 8000,8000
• Parties: Roberta J. WARD, Plaintiff-Respondent, v. PENN MUTUAL LIFE INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 413

352 S.W.2d 413

Roberta J. WARD, Plaintiff-Respondent, v. PENN MUTUAL LIFE INSURANCE COMPANY, a corporation,

Defendant-Appellant.

No. 8000.

Springfield Court of Appeals, Missouri.

Dec. 20, 1961.

Mann, Walter, Powell, Burkart & Weathers, John R. Lewis, Springfield, for defendant-appellant.

Farrington & Curtis, Thomas G. Strong, David G. Holden, Springfield, for plaintiff-respondent.

STONE, Judge.

Shortly after midnight on September 22, 1960, Marvin B. Ward was thrown or caused to fall from the top of a 1958 Chevrolet station wagon (on which he had been riding) to the pavement on East Division Street in Springfield, Missouri, and sustained injuries of which he died the same day. At the time of Ward's death, two policies issued by defendant on his life were in full force and effect; and, in due course, defendant paid the basic insurance benefits provided by those policies. In this action, Roberta J. Ward, the widow and named beneficiary in the policies, sued for double indemnity benefits payable in the event of death resulting directly and independently of all other causes from bodily injury effected solely 'by external, violent and accidental means'; and, upon trial, plaintiff beneficiary had a verdict on Count I for $5,146.67 and on Count II for $2,573.34. On this appeal, defendant's primary contention is that its motion for directed verdict at the close of all the evidence should have been sustained because the evidence showed, as a matter of law, that Ward's death did not result from 'accidental means.' As spelled out in its verdict-directing instruction, defendant's theory has been (and still is) that Ward's death was a direct and proximate result of 'his voluntary and wanton exposure to unnecessary and known danger because of his having voluntarily and knowingly assumed a position of lying prone, with legs and arms outstretched, on the top of an automobile driven by Harry Lee Murrell * * * and thereafter insisting that said automobile be driven while he remained in that position,' by reason of which 'his death was neither unusual nor unexpected, and was the natural and probable consequence of said voluntary acts.'

At the close of their workday about 4:45 P.M. on September 21, 1960, Ward (then thirty years of age) and Murrell (about thirty-three years of age), both of whom were employed in 'line work' for Southwestern Bell Telephone Company, met at the Twilight Inn. Within a few minutes, they were joined by LeRoy Arthur Patterson (about forty-five years of age), a teletype repairman for Southwestern Bell. During the ensuing period of some four and three-quarters hours, this thirsty triumvirate diligently devoted themselves to the divertisements of 'drinking beer and talking,' with each participant downing some nine or ten bottlesized steins of 5% beer. About 9:30 P.M. they decided upon a change of surroundings; and, with Murrell at the wheel of his station wagon and both Ward and Patterson then riding inside that vehicle, the trio repaired to the Blue Ribbon Bar at the southwest corner of Commercial and Jefferson, where each had two 'bowls' (somewhat larger than steins) of 5% beer and then ordered a fried chicken supper. About 11:30 P.M. (as Murrell remembered it) or midnight (as Patterson thought), they left the Blue Ribbon and went to the station wagon on the parking lot behind (or south of) the bar, intending to return to the parking lot at the Twilight Inn where Ward and Patterson had left their automobiles. Murrell again got into the driver's seat of his station wagon and Patterson prepared to enter through the right front door. But Ward stepped on the rear bumper, climbed on top of the station wagon, and assumed a 'face-down,' flat, 'sort of spread-eagled position' with his head near the front of the vehicle and his arms outstretched to grasp the tops of the front doors. With Ward, in his exuberance, 'cutting up in general' and pounding on top of the station wagon, Patterson told the ebullient topsider to get down and, when the latter did not comply, Patterson braced himself against the side of the station wagon, grabbed Ward's right wrist, and 'tried to pull him off the car * * * two or three times.' But, with Patterson pulling as hard as he could, he 'was unable to budge (Ward) at all.' Ward jerked his right arm loose, grinned at Patterson, and told him 'this is the only way I am going to ride.'

Thus failing to dislodge Ward from his position atop the station wagon, Patterson got into the front seat and Murrell, after backing out of the parking lot, started west down the east-and-west alley behind the Blue Ribbon. Before reaching Robberson, the next north-and-south street, Murrell made an apparently unscheduled stop behind Floyd's Bar, entered the rear door of that tavern, and remained inside about five minutes---- 'I (Murrell) don't recall of having a beer; I think I just more or less passed the time of day for a little while.' Returning to his station wagon, Murrell found Patterson 'nodding' in the front seat and Ward, still in the same position, 'sort of pounding on top of the car in a rhythm.' This bizarre behavior had awakened witness Farmer, then asleep on the second-floor porch of an adjacent rooming house; and, with the scene illuminated by a light at the rear of Floyd's Bar, Farmer plainly saw Ward 'a big husky boy,' with both arms outstretched 'holding onto something' as Murrell 'drove off just normally'--'just like you or I would.' A few minutes later and about eleven blocks distant, Ward's unconscious body was found by witness Bunch, a taxi driver, on East Division Street some twenty to thirty yards east of the intersection of Division and North Sherman Avenue. His head was some three to four feet south of the white center line on Division with the body angling in a southwesterly direction. There was 'blood all over his face, his mouth, his ears and his eyes.'

On direct examination, Murrell (a defendant's witness) testified that, after he left Floyd's Bar, he drove west down the alley to Robberson (the next north-and-south street), made a left-hand turn and proceeded south on Robberson to Division (a distance of about three blocks), and there made another left-hand turn and proceeded east on Division to the point of tragedy. On cross-examination, he conceded that he could not remember what route he had followed after leaving Floyd's Bar. However, he said that he had been traveling east on Division when, at a point about one hundred fifty yards east of the intersection of Division and Sherman, a then unidentified woman in an automobile had stopped him and had called his attention to the fact that 'they had found someone in the street.' After then discovering that Ward was not on top of the station wagon, 'I (Murrell) walked back to where this fellow was laying in the street, Mr. Ward, and when I got there I saw him; there was already a car, or something, some sort of vehicle stopped there in front of him; and I started to pick him up, I heard somebody say, 'Don't touch that man, don't pick him up.'' so 'I turned around and went up to my car' and drove away. He did not remember whether he had backed before driving away to the east, and he had no recollection whether he had circled around and returned to the scene.

Patterson (likewise a defendant's witness), drowsy and dozing after he got into the station wagon behind the Blue Ribbon Bar, had only 'a vague memory' of the stop behind Floyd's Bar and no recollection of what had occurred thereafter until he 'heard a horn honking * * * and a lady's voice saying 'there is a man laying in the street back there.'' Opening his eyes, Patterson found that the station wagon had stopped, headed east on Division, about one-half block east of the intersection of Division and Sherman. Patterson's trial version was that Murrell thereafter backed his station wagon on the north side of Division and the then unidentified lady also backed her automobile toward the prostrate figure on the pavement; that Patterson did not get out of the station wagon and did not recognize the man in the street; that Murrell did alight, went over to the body, came back to the station wagon, 'drove off a short ways, * backed up once more, and then drove off against east' on Division Street; and, that Murrell thereafter circled to the right around several blocks and came back to the intersection of East Division and North Clay (one short block west of the intersection of Division and Sherman), from which point it was observed that Ward was being loaded into an ambulance.

Murrell then proceeded to the Twilight Inn, where Patterson got into his parked automobile, and both drove directly to their respective homes. In their first statements to investigating police officers, Murrell and Patterson said that they had separated from Ward when they left the Blue Ribbon--'that he (Ward) went one direction and we went the other.' According to Murrell and Patterson, they subsequently gave other statements to the officers which were substantially the same as their testimony upon trial. Both refused to testify at the inquest into Ward's death, Murrell because 'I felt I was still under shock' and Patterson 'on advice of counsel.'

In rebuttal, plaintiff called Lavonna Rotzinger who, east-bound on Division on her way to work at the Lily-Tulip plant shortly after midnight, slowed down when she saw a man lying in the street just east of the intersection of Division and Sherman but, being alone, was afraid to stop immediately. However, as she reached the top of the grade east of this intersection, the headlights of her automobile shone on a two-tone station wagon (the Murrell vehicle) which was standing unlighted, just north of Division but headed back to the south, in the first intersecting north-and-south alley or street east of the prostrate body. When the headlights of the Rotzinger automobile struck the unlighted station wagon, the driver of that vehicle (Murrell)...