This is an action on an accident insurance policy. The petition seeks to recover double indemnity, which is provided for in the policy if the insured be injured while a passenger in or on a public conveyance (including the platform, steps or running-board thereof) provided by a common carrier for passenger service.
The answer denied liability under the double indemnity clause, and set up a number of defenses. *Page 267
Plaintiff recovered judgment for $1,050 due under the policy, $45.82 interest, $105 damages, $350 attorney's fees, making a total of $1,550.82.
Defendant appeals.
Plaintiff, whose business was baker and confectioner, resided in the City of St. Louis, where he stated he had been engaged in such business for about twenty-six years.
Plaintiff testified that on or about the 28th of October, 1916, while riding on a street car in St. Louis, and on what is known as the Wellston line, he had proceeded west until the car reached the intersection of Newstead and Easton Avenues, where he was intending to leave the car. He signaled for the car to stop, which was done. At the time, he was riding on the rear platform where two or three other men were also riding as passengers. One of these men was standing in his way as he started to get off the car, and before he could step down off the car onto the ground the car started with a sudden jerk and threw him into the street, where he received the injuries complained of, consisting of broken fingers, lacerated hands, and injuries to his body and legs.
On behalf of the defendant, the evidence showed that the plaintiff did not wait for the car to stop, but voluntarily stepped off the car while it was in motion and before it stopped or reached the usual stopping point. Three or four witnesses who were on the car, and some of whom were on the rear platform at the time plaintiff sustained his injuries, testified positively that he deliberately stepped from the car while it was in motion.
At the trial and during the cross-examination of plaintiff, the following took place:
"Q. Mr. Distler, your attorney, Mr Kelley, went to the office of the Columbian National Insurance Company, and they offered him four hundred dollars to settle your claim, didn't they? A. I don't know.
"Mr. Kelley: Wait a minute. I never did; you are mistaken about that. For your information I'll say I did not go over there.
"Mr. Leahy: Well, the representative of the insurance company saw Mr. Kelly, whether at their place of business *Page 268 or his office, and offered four hundred dollars? A. I don't know.
"Q. Didn't Mr. Kelley tell you to take that? A. No; you offered me nine hundred dollars and I said I wouldn't take it; didn't you?
"Mr. Leahy: Now, I will ask for a mistrial on it.
"Mr. Kelley: But you brought it out.
"Mr. Leahy: I did not bring any such thing out.
"Mr. Kelley: Yes, you did.
"Mr. Leahy: That is a statement unwarranted and uncalled for and improper, and I ask for a mistrial.
"The court: It is not responsive to your question; you did not bring it out; I will order it stricken out, and overrule your application for a mistrial. The jurors are instructed to disregard the statement just made by the witness as to any proposition that Mr. Leahy is supposed to have made to him."
Such other testimony as may be necessary to a proper determination of the points raised by appellant, will be set out and referred to in the opinion.
Appellant contends that plaintiff was not entitled to recover for double indemnity because the injuries he sustained were not received while in or on a public conveyance, nor on the platform, steps or running-board thereof, as provided for by the terms of the policy providing for double indemnity; that the court erred in not declaring a mistrial on account of the voluntary statement of the witness as above set out in the testimony with respect to the offer of $900; and that there was no testimony to sustain the finding and judgment as to the assessment of penalty and attorney's fees for vexatious refusal to pay.
As to the first contention of appellant, we rule adversely. There is no contention in this case as to the defendant's liability, but it is denied that it is liable for double indemnity because plaintiff was not in or on this street car (including the platform or steps) at the time he received the injury, so as to come within the provisions of the policy providing for double indemnity, where the insured received injuries under such circumstances. *Page 269
To say that the plaintiff did not receive his injuries while riding as a passenger in or on this street car or the steps thereof, but received his injuries after he had safely disconnected himself from the car, would be like saying that a man did not receive any injuries by a fall, but received injuries by coming suddenly in contact with the ground. Where insurance contracts, which are prepared entirely by the insurer, are susceptible to two meanings, the contract should be so construed as to give to it that meaning most favorable to the insured.
If plaintiff's testimony be true, and the jury evidently believed it, he had not safely disconnected himself from this street car, when the sudden jerk of the car threw him to the ground; and if so, we think the language of this policy is broad enough to create liability for double indemnity on account of the injuries of plaintiff as detailed in the evidence. He was a passenger on this car, and had not safely alighted, nor had he safely disconnected himself from said car, when, according to his testimony, he was thrown from the car by the sudden jerk or starting of the car. If defendant intended to make such exceptions from liability as it here contends for, such exceptions should have been stated in the policy, and, not having stated them, we cannot give to this policy the narrow construction contended for by defendant. We think this construction is supported by reason as well as by the following authorities: May on Insurance, Vol. 2, section 524; Schmohl v. Travelers' Insurance Co. (Mo. App.), 189 S.W. 597; James v. Casualty Co., 113 Mo. App. 622, 88 S.W. 125; Insurance Co. v. Muir, 126 F. 926; King v. Insurance Co., 101 Ga. 64; Wilmarth v. Insurance Co., 143 P. 780; Barber v. Travelers' Insurance Co., 165 Ill. App. 239.
We do not think there is anything said in Turner v. Fidelity Casualty Co., 274 Mo. 260, 202 S.W. 1078, or Fay v. Aetna Life Insurance Co., 268 Mo. 373, 187 S.W. 861, which announces a contrary rule under such a state of facts as is detailed by the plaintiff in this case and under the terms of a similar policy. *Page 270
We now pass to the next question as to whether or not there was reversible error in the court's action in refusing to declare a mistrial on account of the voluntary statement of the witness with respect to the testimony heretofore set out in this opinion. The court admonished the jury that they should wholly disregard such statement, and as the question of declaring a mistrial under such circumstances is largely a matter within the discretion of the trial court, we do not think, in view of all the circumstances, that this was reversible error, especially as there may be some doubt as to whether or not the answer of the witness was entirely voluntary or was not in some respects an answer to the question asked by counsel. [Wojciechowski v. Coryell (Mo. App.), 217 S.W. 638; Stutz v. Milligan et al. (Mo. App.), 223 S.W. 128.]
We now come to appellant's final contention, which is, that there was no evidence to support the finding of the jury imposing damages and attorney's fees.
Plaintiff testified that when he was in defendant's office, when the question of settlement was being discussed, he was told by one of defendant's agents that unless he accepted the amount offered him in settlement, his policy would be canceled and he would not get anything. He also states that after his refusal his policy was canceled. We think this fact, if it is a fact, together with all the other facts and circumstances in the case, authorized the court to submit this question to the jury, and we would not be justified in disturbing their verdict. The arbitrary action of the defendant in canceling the policy because plaintiff refused to accept the amount offered him, would be a fact tending to show the wilful refusal of the defendant to pay the amount recovered on the policy, while it may not be any evidence bearing upon his right to recovery. [Fay v. Aetna Life Insurance Co., supra.]
The Commissioner recommends that the judgment be affirmed.