| Mo. | Feb 9, 1916
Certiorari to the Kansas City Court of Appeals. The case may be stated in small compass. Judge Johnson of the Court of Appeals in an opinion filed, thus states some of the substantial facts:
“This is an action on a policy of accident insurance issued by defendant, June 7, 1912, and in force at the time of the injury and death of the assured. The defense is that the cause of the injury was one for which the policy provided no indemnity. A jury Avas waived, the cause was submitted on agreed facts, judgment was rendered for plaintiff and defendant appealed.
“Defendant, for a premium paid by the plaintiff, Arthur J. Schmohl, and upon his application, issued to him an accident policy in which Iris mother, Anna Schmohl, was named as beneficiary and which, in its ‘Schedule of Indemnities,’ provided for the payment of $10,000 to the beneficiary in the event of his death resulting, from injuries sustained ‘while a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps, or running-board of railway or street railway cars.) ’ Attached to this policy and as part of the*587 obligations assumed by defendant in consideration of the stipulated premium, was a supplementary policy in which Anna Schmohl, the mother, was the assured and plaintiff the beneficiary. The undertaking of defendant in this ‘supplement’ was ‘to insure Anna Schmohl, the mother of the insured under policy No. F. B.-4420, issued to Arthur J. Schmohl against loss resulting from bodily injuries effected directly and independently of all other causes through external, violent and accidental means (suicide, sane or insane not included) while riding as a passenger in a railway passenger car or vessel licensed for the transportation of passengers, provided in either case by a common carrier and propelled by mechanical power.’
“Mrs. Schmohl was accidentally killed in Germany, June 20, 1913, while riding as a passenger on a passenger train, and this suit is for the recovery of the indemnity provided in the supplementary policy.
“Mrs. Schmohl, accompanied by her friend, Frau Pauline Frank, became a passenger on a train running from Esslingen to Nuertingen. The cars were similar in interior arrangement to the ordinary American passenger coach, but the train was not vestibuled and the platform at the ends of the cars were unenclosed. Where two cars were coupled together there was -rather a wide space between the platforms which was spanned by a sheet iron folding bridge slightly arched. A person in going from one car to the next would cross this bridge which was not provided with guards. On the inside of the door of each car a notice was posted which read: ‘Stepping onto the platform and step-board while the car is in motion is forbidden. ’ “Mrs. Frank testified that before boarding the train, Mrs. Schmohl spoke of not feeling well, that she was cold, ‘that everything around her seemed to dance in a circle, and that she had a feeling as if spiders were running up her legs.’ After the train started*588 and while they were seated in a car, Mrs. Sehmohl declared her intention of going to the next car, to see if a mutual friend who was intending to go on that train were there. Mrs. Frank testified, ‘I dissuaded her from doing so, saying that passengers were forbidden to leave the car while the train is in motion and that a penalty is attached to doing so.’ This warning was disregarded, Mrs. Sehmohl replying that ‘she always does it in America,’ left her seat and proceeded to the platform. Mrs. Frank observed her as she disappeared through the door. No one saw her fall from the train and, as stated in the agreed facts, ‘it does not appear and is not known by what means or from what cause deceased fell or was thrown from said platform or steps.’
“It is agreed that ‘after she had passed through the door on to the platform and while on the platform aforesaid, she fell or was thrown from the train to the ground, receiving injuries from which she instantly died.’
“The only reasonable inference that may be drawn from the disclosed facts and circumstances is that the assured accidentally fell or was thrown by the motion of the train while she was endeavoring to pass from one car to another. The burden is upon plaintiff to show that the cause of his mother’s death was accidental and violent. The latter fact being conceded, the existence of the former will be presumed in the absence of proof to the contrary. In showing a violent cause plaintiff made out a prima-facie case of an accidental cause. [Insurance Co. v. McConkey, 127 U.S. 661" court="SCOTUS" date_filed="1888-05-14" href="https://app.midpage.ai/document/travellers-insurance-v-mcconkey-92293?utm_source=webapp" opinion_id="92293">127 U. S. 661; Travelers’ Ins. Co. v. Melick, 65 F. 178" court="8th Cir." date_filed="1894-12-03" href="https://app.midpage.ai/document/travelers-ins-v-melick-8851460?utm_source=webapp" opinion_id="8851460">65 Fed. 178; Paul v. Travelers’ Ins. Co., 112 N.Y. 472" court="NY" date_filed="1889-03-05" href="https://app.midpage.ai/document/paul-v--travelers-ins-co-3597467?utm_source=webapp" opinion_id="3597467">112 N. Y. 472; Lovelace v. Travelers’ Protective Assn., 126 Mo. 104" court="Mo." date_filed="1894-12-22" href="https://app.midpage.ai/document/lovelace-v-travelers-protective-assn-8011605?utm_source=webapp" opinion_id="8011605">126 Mo. 104; Collins v. Fidelity & Casualty Co., 63 Mo. App. 253" court="Mo. Ct. App." date_filed="1895-11-04" href="https://app.midpage.ai/document/collins-v-fidelity--casualty-co-6618169?utm_source=webapp" opinion_id="6618169">63 Mo. App. 253; Phelan v. Travelers’ Ins. Co., 38 Mo. App. 640" court="Mo. Ct. App." date_filed="1890-01-06" href="https://app.midpage.ai/document/phelan-v-travelers-insurance-6616181?utm_source=webapp" opinion_id="6616181">38 Mo. App. 640; Young v. Railway Mail Assn., 126 Mo. App. l. c. 335; U. S. Mutual*589 Accident Assn. v. Barry, 131 U.S. 100" court="SCOTUS" date_filed="1889-05-13" href="https://app.midpage.ai/document/united-states-mutual-accident-assn-v-barry-92529?utm_source=webapp" opinion_id="92529">131 U. S. 100; Beile v. Protective Assn. of America, 155 Mo. App. 629" court="Mo. Ct. App." date_filed="1911-03-04" href="https://app.midpage.ai/document/beile-v-travelers-protective-assn-of-america-8265633?utm_source=webapp" opinion_id="8265633">155 Mo. App. 629.]
“It is conceded the accident occurred while Mrs. Schmohl was riding upon a moving train on the open platform or unguarded bridge and, therefore, while she was not in the interior of a passenger ear, and the principal question for our solution is whether or not she was ‘riding as a passenger in a railway passenger car’ within the meaning the supplementary policy was intended by the parties to give to that term.”
Later on in the opinion the learned jurist takes up both provisions in the two policies, and ultimately holds that the words used in the supplemental policy restricts the right of the beneficiary therein, relator herein, to recover only for such accident as might have occurred to relator’s mother whilst actually within the car in- which she was riding. This holding of course defeated relator’s action, for the reason that the accident occurred while on the platform of the car, and' not whilst the deceased was within the car. The ruling, it is averred, is contrary to our rulings, and hence the case is here.
*590 “The weight of authority supports the view that such expressions in an accident policy as ‘riding in or on a public conveyance’ operated by a common carrier for the transportation of passengers should be construed as extending the liability of the insurer to injuries- received while the insured is upon the platform of a moving train. The term ‘public conveyance, ’ when applied to a passenger train on a steam railway, refers to the train, and not to any particular unit which enters into its composition. A passenger is in or on a public conveyance when he is riding as a passenger inside a car, on the platform of a car, or as in the Berliner case (Berliner v. Ins. Co., 53 P. 918" court="Cal." date_filed="1898-07-18" href="https://app.midpage.ai/document/berliner-v-travelers-insurance-co-5449289?utm_source=webapp" opinion_id="5449289">53 Pac. 918), when he is riding on the locomotive by invitation. And we agree with Judge Thayer’s view in the Vandecar case (Aetna L. Ins. Co. v. Vandecar, 86 F. 282" court="8th Cir." date_filed="1898-03-21" href="https://app.midpage.ai/document/ætna-life-ins-v-vandecar-8861637?utm_source=webapp" opinion_id="8861637">86 Fed. 282) that to construe the word ‘in’ used in the phrase ‘in a passenger conveyance’ as meaning only inside a passenger car, is highly technical and, in our opinion, ignores the significance that should be attached to the selection by the insurer of the word ‘conveyance’ which, generally, is understood as referring to the entire train. As he well observes, people in ordinary conversation employ the terms ‘by train,’ ‘on a train’ and ‘in a train’ as synonymous, and it would be just as sensible to say that ‘in a train’ requires the insured to be inside a passenger car as to say that ‘in a passenger conveyance’ was intended to have no other meaning. All rules for the judicial interpretation of language employed in written contracts are merely a means to an end, and the end being to ascertain and enforce the mutual intention of the parties. Such intention is to be gathered from the whole instrument by weighing and giving proper consideration to all pertinent stipulations and expressions. Since the ordinary man who makes contracts is not expert in orthography, words should be given their common*591 everyday meaning and definitive refinements should be ignored.
“With these rules in mind we turn to the policy to gather from all its terms and provisions the expressed mutual intention of the parties with respect to the liability defendant 'assumed for injuries Mrs. Schmohl might receive, while traveling on steam railways. While the covenants in the supplementary policy were independent and divisible, both policies were parts of the same transaction, were supported by a single consideration and were one contract. In substance, defendant agreed to insure plaintiff and his mother for the stated premium and prescribed the terms upon which it would become liable as an insurer for personal injuries to each. To plaintiff it said: ‘If your death results from injuries you received while a passenger in or on a public conveyance provided by a common carrier, including the platforms of railway cars, we will pay your mother $10,000,’ expressly granting to plaintiff, who is a young man, permission to ride on the platform of cars, but as to injuries the mother might receive, the liability defendant assumed-was hedged about by most restrictive language. Not only was no express permission given her to ride upon car platforms while the train was in motion, but the broader term ‘in or on a public conveyance’ employed in the principal policy was narrowed in the supplementary policy to ‘in a railway passenger car.’
“If common sense is to prevail, as it should, in the construction of contracts, can there be any reasonable doubt that defendant clearly provided for immunity from liability except for injuries this comparatively old and inactive woman might sustain while riding inside a passenger car? Circumstances alter cases. As shown, ‘in,’ ‘on’ and ‘by’ may be used as synonyms and so may ‘in’ and ‘inside.’ The context and disclosed contractual purposes must often decide.*592 Plaintiff’s interpretation of ‘in a railway passenger ear’ gives that phrase the same meaning and scope as the phrase employed in the principal policy to define the liability for injuries to plaintiff, with its express permission to him. to. ride on car platforms.- Obviously the parties did not intend the liability of the insurer should be the same in either event, but did endeavor to restrict liability for injuries to Mrs. Schmohl to those she might receive while riding inside a passenger car.
“Thp learned trial judge erred in rendering judgment for plaintiff. The judgment is reversed.”
This portrays clearly the views of the Court of Appeals. They are (1) that the two contracts must be construed together to get the intent of the supplemental contract, and (2) when thus construed together, the meaning of the latter is that no recovery can be had, unless the accident occurred whilst the deceased was “in a passenger car” and not while she was on the platform thereof. "We have, therefore, first, the question, whether under our rulings the Court of Appeals was right in holding that the two contracts must be construed together, and secondly, if they must be so construed, whether or not the construction given violates our holdings. There may also be the further question, whether or not, if the Court of Appeals erred in holding that the two instruments must be construed together the said court was in error, according to our rulings, in giving to the supplemental contract the construction given. The questions we take up in order.