Winsor v. Massachusetts Mut. Life Ins. Co., 3 Div. 834.

• Decision Date: 25 February 1941
• Docket Number: 3 Div. 834.
• Citation: 30 Ala.App. 64,200 So. 641
• Parties: WINSOR v. MASSACHUSETTS MUT. LIFE INS. CO.
• Court: Alabama Court of Appeals

200 So. 641

30 Ala.App. 64

WINSOR v. MASSACHUSETTS MUT. LIFE INS. CO.

3 Div. 834.

Court of Appeals of Alabama

February 25, 1941

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action on double indemnity clause of a policy of life insurance by Mrs. Frank R. Winsor against Massachusetts Mutual Life Insurance Company. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Wm. F Thetford, of Montgomery, for appellant.

Rushton Johnston & Williams, of Montgomery, for appellee.

BRICKEN, Presiding Judge.

Appellant brought suit against appellee, upon the double indemnity clause of a life insurance policy issued by appellee company to Frank R. Winsor, on February 27, 1936, in which appellant the wife of insured, is the beneficiary.

The complaint contained three counts and the amount sued for was $1,000.

The double indemnity clause of said policy, as shown by the bill of exceptions, is as follows: "Upon receipt of due proof that the death of the insured occurred during the continuance of this policy and before the anniversary of this policy on which the insured's age at nearest birthday is sixty-five years, as the result of bodily injury effected solely through external, violent, and accidental means, of which there is a visible contusion or wound on the exterior of the body (except in case of accidental drowning or of internal injuries revealed by an autopsy), and that such death occurred within ninety days after sustaining such injury and as a direct result thereof, independently and exclusively of all other causes, the Company, subject to the conditions herein set forth, will pay one thousand dollars in addition to, and in the same manner and to the same beneficiary or beneficiaries as the other proceeds of this policy."

It was also provided by said policy that: "The benefits under this Provision shall not be payable if the death of the insured resulted directly or indirectly from self-destruction at any time, whether sane or insane, or any attempt thereat; from riot or war or any act incident thereto; from injuries sustained while performing police duty as a member of any military or naval or police organization; from aeronautic or submarine casualty; from bodily or mental infirmity, or from disease of any kind; from any poison or any gas (including carbon monoxide) voluntarily or involuntarily taken, administered, absorbed or inhaled; from infection other than that occurring simultaneously with and in consequence of bodily injury; or from injuries received while violating any law. The Company shall have the right and opportunity to examine the body and make an autopsy unless prohibited by law."

It was also provided by said policy of insurance that the company, upon receipt of satisfactory proof of death, was authorized to pay the proceeds of the policy, exclusive of any benefits therein provided, without prejudice to the claim for such benefits or to the defense thereof, and that such payment might be made without the surrender of the policy and that the company had the right to inspect said policy.

The evidence introduced upon the trial of the case in the court below established, without dispute, that the insured died on the 2nd day of March, 1940, as the result of gas gangrene, directly resulting from the insured's being bitten by a lion on the morning of February 29, 1940, said death occurring a little less than two days after the injuries were sustained.

Said evidence further establishes, without dispute, that on the morning of February 29, 1940, about the hour of one o'clock A. M. Frank R. Winsor, a veterinarian, the insured, commonly known and called Dr. Winsor, was at a down town cafe in the city of Montgomery, at which time and place he requested one John Crew, a taxicab driver, to carry him out to Oak Park; Dr. Winsor then got into the taxicab driven by Crew, and was conveyed to Oak Park, a public park and play ground in the city of Montgomery. When he reached Oak Park, Dr. Winsor directed the taxicab driver to,--"Just drive me some where out in the park," and as the driver was carrying out Dr. Winsor's instructions and while driving in the park, Dr. Winsor said, "This is all right, right here," and the taxi driver then put Dr. Winsor out at a spot testified by the driver as being "in front of the monkey cage." The driver then left, going about 200 yards to a call box where he stopped. In two or three minutes after he stopped at the call box, the driver heard Dr. Winsor make an outcry, but not as if someone was hurt. He immediately went back to where he had put Dr. Winsor out, and then he heard Dr. Winsor groan. Later, locating Dr. Winsor outside of the lion's cage, Crew testified: "I found him laying on his left side with his right arm inside the cage and the lion had his arm. It was very dark and I had to strike matches to see really what was going on. I wasn't able to make out anything at first because it was so dark. At that time the lion had his arm between his hand and elbow. His hand looked like it had been chewed. It was bloody and ragged looking. I couldn't tell how deep the wounds were on his hand but it looked like it was mangled to me."

After making repeated efforts to free Dr. Winsor from the lion, and failing to do so, Crew went for help. He found the park's night watchman, and the two of them succeeded in getting Dr. Winsor loose from the lion. After putting a tourniquet around Dr. Winsor's arm to stop the copious flow of blood, Crew, the driver, proceeded to take Winsor to Hubbard's Hospital, located nearby. Crew testified that Dr. Winsor fainted while in the taxicab after they had traveled about half the distance to the hospital, and fainted again when he left the taxicab and tried to walk.

This witness further described the physical surroundings of the lion's cage and the position of Dr. Winsor when witness reached him, and in this connection he testified: "The actual cage in which the lion was in consisted of an oblong wooden house and a semi-circular cement platform with iron bars about five or six inches apart which was attached to the lion's house. He testified that the bars were wide enough apart, in his opinion, for the lion to get his paw out or for a man to put his hand in.

He further testified that there was a fence around four and one-half feet high which enclosed the lion's cage, said fence being above five feet from the cage. That Dr. Winsor was inside of the fence surrounding the lion's cage, but on the outside of the cage itself. He testified that he did not know how the lion actually got hold of Dr. Winsor's hand."

Photographs of the physical surroundings of the lion's cage, and of the cage itself, were introduced in evidence.

These photographs show that the fence around the lion's cage was a woven wire fence, of rather large mesh, fastened to an iron pipe frame, with an iron pipe, the top of the frame, at the top of the fence extended the entire length of said fence, and with iron brakes. These photographs were introduced in evidence by the defendant. And Mr. Nelson, the night watchman at Oak Park, a witness for defendant, testified that this fence was 4 1/2 to 5 feet high, and that there was a gate to the enclosure between the fence and the cage, and that this gate was kept locked all the time, and was locked the night Dr. Winsor was injured.

He further testified that before one could get to the lion's cage he would have to climb over the fence above described, and that signs directing people to keep out were usually on the fence around the cage, but that he could not say that there was a sign on the side of the fence where Dr. Winsor entered the night he was bitten by the lion. He further testified that the space between the fence and the lion's cage was between 5 and 6 feet, and that the distance between the iron bars on the lion's cage proper was about 4 inches.

Mr. Nelson further testified that on a previous occasion he had seen Dr. Winsor inside the above described fence close to the lion's cage, kneeling down and talking to her, and that the witness objected to Dr. Winsor being there. That he didn't know who Dr. Winsor was the first time he saw him there and did not know him until he caught him again; that the nature and disposition of this particular lion was all right. That the first time he saw Dr. Winsor at the lion's cage he told him to come out; that he didn't know who he was at that time and had to get a little rough with him; that he asked Dr. Winsor to come out, and that Dr. Winsor resisted, and that the witness asked Dr. Winsor, "What are you doing in here at this time of the night," and that Dr. Winsor replied, "I wanted to come in there and talk to her. I love lions."

Dr Brannon Hubbard, a duly qualified and practicing physician and surgeon, was called as a witness for the plaintiff, and testified that he attended Dr. Winsor around 1 o'clock A. M. on the morning of February 29, 1940; that Dr. Winsor told him that he had been bitten by a lion; that Dr. Winsor's right arm and shoulder were horribly lacerated from the hand to the shoulder, which mutilation he minutely described; that Dr. Winsor died as the result of gas gangrene, resulting from said injuries, and that his death occurred a little less than two days after the injuries were sustained. This witness further testified that he advised Dr. Winsor to have his arm amputated, because the bites were so very dangerous and that there was danger of bad infection, and that Dr. Winsor objected at that time to having his arm amputated, saying that, "He didn't want his arm cut off, as he had to make a living with it." Witness Hubbard further testified that he gave Dr. Winsor tetanus and gas gangrene antitoxin, and that, "In the first...