*1 232
judgment by yet were company, they waived the insurance were voluntarily for paid waived a by consideration the assured. Plain upon tiff cannot purpose insist the contract for settlement reject a establishing it waiver, purpose but for the of disclaim ing liability its $2,600. By payment attempting to any part plaintiff enforce accepts contract the whole contract cum onere. escaped large contingent by
The assured has a liability pay comparatively money. ment a small sum of It would be bad policy lay down to a rule an that assured could his con recover whereby tribution toward liability settlement an a fixed at liability mount If covered insurance. such a rule should be announced law as the of Missouri companies the insurance would enter such into settlements. This going not would result in causes to trial which would large otherwise have been settled, and num compelled pay ber of eases the assured would be to far more than necessary would have been permitted he been to enter into a whereby part he voluntary contract bore the costs of settlement. It will not todo in such event could recover amount allegation liability from the insurance an company was clear refusal settle constituted upon the part company. nearly insurance all the cases which have reached jury this court cause has been submitted to the because which, there evidence if jury, some believed would have resulted in a verdict for defendant. We could not hold in negligent cases refusal settle was unless we assumed, appellate Hampshire of New courts and Minnesota assumed, duty company eyes is the the insurance to shut its only protection own and seek its interests of the assured when offer of made. settlement is We have already pointed out that contrary plain think purpose we this provisions judgment Trimble, policy. The is reversed. Bland, concurs; J., J., P. absent.
OCTOBER, 1928. City Appellant.* St. Cregger, Burnice Respondent, Charles, (2d) 11 S. 750. W. Appeals. Opinion
St. Louis Court of Filed December 1928. *2 Juris-Cyc. Evidence, 22CJ, 71; 27, p. 84, *Corpus References: section n. 569, 868, 47; Vehicles, p. 576, 3; 42CJ, p. 872, section n. section section n. Motor p. 15; 477, 898, 481, p. 45CJ, 910, 61; Negligence, section n. n. section 41; 880, p. 1321, n. 36. 490, p. n. section
William, Allen & Hensley, Brviere Achelpohl, G. F. Theodore appellant. Marsalek for *3 Jwrgensmeyer Eos- Bloebaum, Alvin E. Dyer, F. H. Ww.
B. Ealey respondent. & tetter *4 brought by widow for the the is an action BENNICK, C. This jury was The verdict of the
wrongful death of her husband. rendered, judgment and, $3500; from the plaintiff, in the sum of duly appealed. defendant has alleged traveled of a much the. existence petition, plaintiff
In her Kingshighway; that was city, known in defendant street dangerous repair, free from same in and duty keep defendant to of defects; 12, 1925, decedent’s that, the date of December and on holes Kings- long prior thereto, there a hole in death, wras time and for a street; Sibley that, account of highway intersection with on near its hole, respect dangerous Kingshighway was with said the condition of Sibley traveling and of into thereon desirous persons to of question, decedent, the invitation street; that, day in on the riding operated cab Summers, behind the of a was Kingshighway; on endeavored Summers Summers, southwardly wheels that one of the Sibley street; right into turn to the to producing such hole, through, said dropped into, passed and truck out of decedent to throw jolt truck as jar and unusual an killed; de- he was street, whereby same on the hard-surfaced existence of knowledge of the or fendant had actual constructive street; using the persons arising to hole, danger therefrom and the permitted negligently knowledge, defendant, with said directly repair it, which said remain, and hole to failed to proximately death of decedent. caused the general denial. was a The answer of defendant entirely accurate, give it tends we are not While the directions shall to violence situation, easy understanding and does to of north Kingshighway runs from rights party, of either to east, inter south, street, extending from west to Sibley and that At of sects, Kingshighway the time cross, not on the west. but does Kingshighway a rock foundation casualty, was constructed with macadam, principally covered with was traveled streets one of city. was a At the there brick intersection the two streets walk, Sibley west ¿xtending across, within, street, parallel to the Kingshighway. line
A macadam, following washout, break in the surface caused was Kingshighway, hole to form in location which variously estimated at six from feet east the west curb ten eight eighteen and from north feet north of the Sibley hole, length, line street. The in was about two feet width, the same distance in abrupt, sloped not down but center, greatest depth, inches, where its of five six or was to found. It was shown that the hole had existed in the surface of the street for as much as prior day two months question, in repaired by not city until within one or two hours'after body of the decedent was removed. Shortly o’clock, seven morning before on of December one Robert M. Summers driving southwardly on Kingshighway Sibley toward his Ford truck, accompanied by two other men, one sitting of whom was seat, with Summers in while other sat the door of the cab with resting running his feet upon the The truck was board.. constructed in manner, ordinary having front, cab in the extending three feet, slightly or more, above the floor of bed, which was five width, eight feet in length, feet in with sides height. seventeen inches spring rear The and the tires of the truck were described as solid. Approximately two blocks north Sibley street, Summers observed decedent, with whom he had been acquainted for seven eight months, southwardly walking on the *5 sidewalk on the West side Kingshighway, of carrying his dinner pail hand; his he and invited the latter to ride to work in truck, as he had also had occasion to do on the previous morning. Decedent, six height, about feet in climbed who was into bed of holding top stood with his left on cab, and hand of the meanwhile right his dinner hand, again in his after which he was never bucket seen alive. street, slightly
As approached Sibley Summers course veered his right-hand Kingshighway, the left to make a towards the center of turn, and, just into, and so, right dropped as he did his rear wheel through, its point four inches from hole at a three or passed jerk” edge, producing “quite jar,” a well a “considerable little as speed when wheel left twelve the hole. He made the turn at a of destination, hour, an continued onward to his or fifteen miles missing. his com- Summers and when it was found that decedent Was decedent; and, thereupon panions their course search retraced Sibley they Kingshighway and the intersection of when arrived at streets, they street, having lying body meanwhile been saw by East, delivery approximately at minutes boy, discovered ten a of seven o’clock. body resting stomach, lay diagonally in the
The was on the west, street, facing with the head to north and the feet to- cross-walk, brick wards south. The head or near was at point twenty-one street, a Sibley north curb while feet from the Sibley street, feet were two feet north of the south line Kingshighway extended into a out distance two and one-half Upon examination, feet. upper found that the and back portion bruised, the head was with the skull in two fractured places, right entirely and that the ear was almost severed. There present were also marks on the surface of the street which indi- body cated that the slid for distance of sixteen inches from point lying, east of where it was and nearer to the center of Kingshighway. body position was further There evidence that was to south, left, right- point where made the Summers had turn, thirty-eight
hand and that the head was feet from hole in the surface of platted if the measurements are to be taken as accurate. Tt pertinent is also to add that the facts heretofore come detailed plaintiff’s
wholly from having case, side defendant contented offering itself with no evidence plat save for a scene accident, which prepared. it had had urged only point The appeal defendant peremp- on this is that its tory instruction in the nature requested of demurrer evidence, at the close of case, the whole given. should have been support of its contention, argues first defendant burden upon plaintiff prove that her husband’s death proximately caused permitting defendant the hole to ; in remain facts shown in circumstances *6 238 probable theory the support tending to of evidence, instead con- the conclusively, to accident, demonstrated the of explanation cause the was corner the around truck the of the trary, that complete of the that, view in death; and fall and decedent’s of the accident, lower the theory of the upon plaintiff’s proof failure defendant. a verdict directed court should case, of the side own plaintiff’s from testimony Bearing in mind the point of the left, south, and the body was found decedent’s that the truck where the driver two streets intersection in the in the hole thirty-eight from the feet turn, and right-hand made, com- light folly, in the it would surface played turning- of the truck mankind, to that the knowledge mon However, by no where it body did. causing fall part in proxi- sole truck was the turning of the that follows means men, jury, as reasonable casualty itself, since of the mate cause dropping found that very legitimately have
might properly producing very perceptible hole, truck into the wheel of his balance decedent to lose cause the jerk, was sufficient to jar and resting on bare standing' was, hand as he with his left fall, with cab, right hand encumbered top of the surface obvious, is consequence probable highly pail. That such his dinner jerk jar truck was driven came as the when we consider that the speed an hour, and of at twelve or fifteen miles into the hole least truck from spring were solid. Aside that tires and rear presumption the exercise which exists that the decedent in competent contrary, there care, proof absence of due nothing is to indicate that ridden over the evidence ever upon occasion, except knew former or he even street, might impelled hole so that he have been possible, to secure a firmer if in order to have counteracted the grip, jar. force and effect of the which, is commonly,
Proximate
best,
cause
defined as
cause
in a
sequence,
natural and continuous
unbroken
in
any efficient
tervening cause, produced the result complained of, and without which
[Kennedy
result would not have
Independent
occurred.
v.
Quarry
&
Co., 316
Jaquith
Construction
Mo.
239 operating first so primarily pro- the others as to make it injury. [Wengert ductive v. Lyons, supra; v. Am- Johnson Hydraulic bursen Co., App. 105, Construction Mo. 173 S. W. 1081; 45 J.C. 910.] determining sequence whether the continuous of events has been intervening
broken cause so as to constitute the latter efficient *7 proximate injury, the it cause of the is understood that for a cause properly intervening, to be be denominated as efficient and it must independent agency a new and which force or breaks chain of the original wrong causal connection the final conse between the quence. intervening Such stand act or event must be sufficient to injury itself as for the cause of the and be one but which the injury, merely to occurred; if cause would not have the new serves original cause, sufficient effect of an which alone was accelerate the the will still be considered produce injury, to the the first cause proximate C. J. and cases 930, cause. [45 cited.] significant it note that the connection is to
Moreover, in this same question, it have found troublesome dealing with ever courts, in this rule, a further which is that wisdom to announce part of to be the although concededly ordinarily, proximate cause is question the & Chesapeake Gulf jury. v. question for the always, [Northern not 404; 317 297 Hogan 524, Mo. S. W. Fleming, v. Co., supra; Fisheries Kidd 89; 316 295 Ry. Mo. S. W. City Co., Kansas T. Lovett v. 274 Ry. S. W. & P. Mo. Co., R. I. Chicago, 1079.] to under discussion of the doctrine Applying the above elements case, prop- it -was this we are convinced that particular the facts of in say of defendant allow?- jury whether the erly the for proximate ing remain in the street was the cause the the hole to approved legitimacy fall We have decedent’s and death. heretofore jar of the descent of the wheel into the of the inference that losing may balance, to which be added hole resulted decedent’s fairly jar jerk or would have it also inferable that him caused to fall from truck had turn been sufficient to have any circumstances, made, under and all in view the been not but peculiar placed. situation in which he was The causal connection injury loss of and the fatal between the balance was in nowise broken although may quite turn, change the fact true that the original consequence of the course of the truck accelerated the of the jerk, least far in so as it determined which side of the truck However, decedent should fall. we stated, have heretofore original cause, produce mere acceleration itself sufficient to injury, appearance is not of a new and independent efficient agency, so as latter, to render rather than first, event the proximate cause, contemplation within of law. Here there is no vio- lence done to the facts in evidence, experience the ordinary mankind, dropping that the of the wheel into the hole
¿40 an unbroken motion jar jerk, set resultant with the street, decedent fall of up to the directly led of circumstances chain events, succeeding to the so connected and was from the there- repeat, continuous whole. We all beame is, turn, that taken, well defendant is not argument advanced fore, that hole of the maintenance question of whether the and that death, one for proximate of decedent’s cause was the jury. of the determination namely, first, closely. with its point is associated next Defendant’s causes for the possible disclosed two own evidence plaintiff’s dropped into the one, jarring truck as the wheel accident, truck around corner at other, the hole, and the hour; within or fifteen miles an that the case comes speed of twelve might injury evidence shows that that, the rule where the causes, which, other, and not one of two resulted from liable, plaintiff show, is fhe with reasonable cer- the defendant must produced cause for which defendant liable tainty, that the result; plaintiff fail in because and that must this action the evidence decedent’s death specula- adduced leaves true cause of fall and *8 conjecture. tion and disproved designated contention is from fact
This that the two independent, were causes not distinct and but were nature merely that the of the truck' added jar, effect of the proof we have heretofore said. In absence of that decedent was driving accustomed to over vicinity of the hole, entirely it is reasonable to infer that he danger was unaware of the same; to be avoided on account of the while, on hand, the other he working job had been on the same with Summers for as much as week, consequence which he must have known the route to destination, likely and would the more have seen security to his making turn, he which bound expected, have he readily could perceived as he looked ahead over the top of the cab. We conclude, therefore, plaintiff bore her burden of show- ing with reasonable certainty that jarring of the truck was the proximate cause of her husband’s misfortune, and it prop- cannot erly said, on demurrer to the evidence, that the matter was left solely speculation and conjecture, as defendant would have us believe. its For point, argues final defendant that the conclusion that the deceased was thrown from the truck reason of the dropping of
the wheel into the hole can be only arrived at by piling upon inference inference, is, by tat inferring first that he was thrown from the truck, then, upon such inference, basing the further inference that cause of the fall presence was the of the hole in the street. It cannot be denied that the conclusion that the decedent fell from the truck rests upon an inference, but it does not follow to the upon inference is built first. is limit second There may case, provided inferences which a given number of be drawn in upon evidence, upon each rests its own facts in based is not preceding hand, another or inference. inference the case jarring that the of the truck the proximate cause of decedent’s upon coupled fall does not rest with fell, inference that body mere fact that there was hole in the near where contrary, testimony To positive found. is it founded position relative to the decedent’s insecure
severity jerk jar dropped felt Summers when the wheel Consequently, having into the hole. from been a rational deduction in proof, jar the facts the inference proximate that the was the cause fall is legitimate, argument contrary defendant’s to the must be disallowed. objections
All propriety ruling of the court’s on the demurrer having disposed of, the evidence been judgment follows that the rendered must be affirmed. The Commissioner so recommends. PER CURIAM:—The foregoing opinion Bennick, C., adopted opinion of judgment
as the the court. The is, circuit court accordingly, J., Daues, Nipper, JJ., affirmed. P. Becker con cur. Company,
Wellston Trust Respondent, Ameri Corporation, Surety Company Appell can of New York, a Corporation, ant.* 14 S. (2d) 23. *9 W. St. Appeals. Opinion February 5, Louis Court of filed 1929.