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 *415 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 bottle-sized 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 Rob-berson, 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,. *416 “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 again 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 *417 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) immediately turned on his headlights and made a right turn to the west onto Division. As the west-bound station wagon and the east-bound Rotzinger automobile came side by side, both vehicles halted and witness Rotzinger told the two men in the station wagon “that there was a man laying in the street back there” but that she had not stopped because she was alone. Although neither of the two men in the station wagon spoke, the driver (Murrell) started forward to the west so witness Rotzinger backed her automobile to the west beside the station wagon. When the vehicles stopped near the body, both drivers alighted and walked to Ward.
North Clay Avenue is the first north-and-south street west of North Sherman Avenue, so a vehicle east-bound on Division Street (along the route which Murrell said, on direct examination, he had taken) would have passed through the intersection of East Division and North Clay only a short block before reaching the intersection of East Division and North Sherman. There is “a bad dip” in Division Street at the intersection of Division and Clay; and, as witness Bunch observed without objection, “you have to hit it kind of slow, or your head will hit the top of the car if you are not careful.” After passing this bad dip at Division and Clay, an east-bound vehicle on Division would have traveled down “a pretty good little grade” in the short block to the intersection of Division and Sherman, would have passed through a “level dip” at the latter intersection, and then would have started upgrade.
The record includes considerable evidence bearing upon the extent of the reasonably foreseeable danger to Ward in his riding upon the top of Murrell’s station wagon. Ward, then thirty years of age, was about six feet one inch in height, weighed an estimated one hundred seventy-five to one hundred ninety pounds, and wore a 34-inch sleeve. The undisputed evidence convincingly established that he was an athletic, muscular, strong individual. Murrell said that Ward was “as strong as a bull,” that he was “as strong as any man down there” (referring to Southwestern Bell where both Murrell and Ward were employed), that “he was a man that you couldn’t wear out,” that in his work he could climb telephone poles with gaffs on his legs “like a cat,” and that, while working on poles, Ward pulled up heavy materials “that would weigh * * as high as a hundred pounds or more.” Patterson referred to Ward as “a very, I would say, exceedingly strong individual.” During the Summer of 1960 when Ward was building a cabin, he and Murrell shoveled and moved by wheelbarrow three truch loads of gravel one morning and then poured the cabin floor that same afternoon. It was shown also that Ward was an archer who used a 58-pound bow (i. e., a bow requiring fifty-eight pounds of pressure “to cock it in an aiming position”), and that as a bow-and-arrow hunter he had held his bow in a cocked position “for a period of time” and had killed two deer. For some time (although, of course, not on the date of this tragedy), Ward had worked both for Southwestern Bell and for a cab company. During that period of dual employment, Ward had worked five days each week for Southwestern Bell from 8:00 A.M. to 4:30 P.M. with one-half hour for lunch, and seven days each week for the cab company from 5:30 P.M. to 2:00 or 3:00 A.M.
*418 Returning to the night of this tragedy, we note that there was testimony by Murrell that he was “perfectly able to drive” when he and his companions left the Blue Ribbon and that all of them “were perfectly able to walk and control (themselves) physically,” and by Patterson that none of the three then “showed any influence of liquor.” Witness Rotzinger, who had stood “right beside” Murrell near Ward’s body, said that “he acted all right to me,” that his “manner of walking” did not indicate that he had been drinking, and that there was no odor of alcohol about him. Plaintiff testified that, in a telephone conversation with her husband (Ward) about 11:00 P.M. on September 21, there was no indication “that he was in any degree under the influence of alcohol.” And, in a colloquy near the close of the trial, defendant’s counsel stated that he could not argue that Ward was intoxicated, for “there is no evidence of it.”
As witness Farmer from his second-story vantage point watched Murrell drive from the rear of Floyd’s Bar, Ward did not roll or bounce around on top of the station wagon but remained stationary with outstretched arms “holding onto something.” Officer Shaffer of the Springfield Police Department (called as a defendant’s witness), an identification technician with thirty years’ experience, made a minute examination of the top of Murrell’s station wagon on the day following Ward’s death. That examination disclosed (1) “an oily spot” about five inches in circumference, some two feet from the front and about equidistant from the sides of the top, which Shaffer believed to have been made by Ward’s forehead (there is, so Shaffer said, more oil in skin on the forehead than on other areas of the face), (2) two small brass-colored marks about one and one-quarter inches in length, some three feet behind the oily spot, which were of the same color and appearance as the brass buckle on Ward’s belt and, in Shaffer’s opinion, had been made by that buckle, (3) two crescent-shaped black marks about one and three-quarters inches in length, some three feet behind the brass-colored belt buckle marks, which Shaffer believed to have been made by the edges of the heavy black rubber or composition soles of Ward’s shoes (white oxidized paint corresponding to that on top of the station wagon was found on the edges of Ward’s shoe soles), (4) Ward’s palm print about eight inches to the left of the oily spot (i. e., toward the driver’s door), which could have been made as he lowered his weight onto the top, and (5) one whole fingerprint (identified as Ward’s print) and many smudged prints above the top of the front door on each side, which, in Shaffer’s opinion, had been made as Ward held to the top of the doors while riding. From his examination of the oily spot, the two small brass-colored belt buckle marks, and the two crescent-shaped black shoe sole marks, Shaffer said that “there was no indication that the man had moved at any time.” ‘
In rebuttal, plaintiff produced one Royal Thomson, a dock foreman for Campbell “66” Express, who was six feet one inch in height, weighed about one hundred seventy-five pounds, and had a sleeve length of thirty-three inches. Over defendant’s objections, Thomson was permitted to testify that, on the Saturday morning prior to the trial, he had ridden in a face-down, spreadeagled position on top of a 1958 Chevrolet station wagon for a distance of about one mile over a semi-blacktop road east of Springfield “considerably rougher” than the surface of East Division Street, as the station wagon was driven up and down hills at a speed of about forty-five miles per hour and around two “country square corners” or “right-hand turns” at thirty miles per hour. Thomson said that, in the course of this ride, he had experienced very little wind resistance, “there was no movement whatsoever” of his body, and no part thereof bounced away from the top of the station wagon. The top “gave” under his weight and formed “more or less a cradle” —“you are bedded down more or less into the top.” This ride, at speeds higher than the speed limit on Division Street, was not *419 attempted on Division because, as Thomson put it, “we were afraid the law might interfere.” Prior to the ride on top of- the 1958 Chevrolet station wagon, Thomson had ridden a few times on top of other automo- • biles. Over objection, the plaintiff widow testified that she had seen Ward ride, without incident, on top of a moving vehicle on Glenstone Avenue in Springfield.
Ward not only was a fellow-employee of Murrell but also was a hunting companion and, as Murrell expressed it, “a very good friend.” Without objection, Murrell said that Ward had ridden with him on other occasions, trusted his (Murrell’s) driving, and had no reason whatever to think that Mur-rell would do anything to endanger Ward. In driving from the Blue Ribbon Bar to the Twilight Inn, Murrell could have fol-Ipwed any one of several different routes, and there was no evidence that Ward knew, when he climbed on the station wagon, which of those routes Murrell intended to take.
Instant plaintiff was content, in her case in chief, to establish the violent death of her husband, the insured. This made a prima facie case of death by accidental means so that defendant’s motion for a ■directed verdict at the close of plaintiff’s case properly was overruled. Sellars v. John Hancock Mut. Life Ins. Co., Mo.App.,
The presumption of death by accidental means, raised by plaintiff’s showing of insured’s violent death and utilized to make a prima facie case, was
not evidence
of the fact presumed but was only a
rebut-table legal presumption
which had the
procedural
effect of shifting to defendant the'
burden of going forward with the evidence.
1
That insured’s death had resulted from accidental means was an essential element of plaintiff’s cause of action, as to which the
burden of proof
rested upon and abided with plaintiff throughout the case [Gennari v. Prudential Ins. Co. of America, Mo.,
We recognize the general principle (emphasized by defendant) that, even though an injury may be unexpected, unforeseen and unusual, it does not occur by accidental means if the means causing the injury has been employed by insured voluntarily in the usual and expected way. Caldwell v. Travelers’ Ins. Co.,
In the case at bar, Ward voluntarily and intentionally assumed a spreadeagled position on top of Murrell’s station wagon while it was parked behind the Blue Ribbon Bar. But, obviously that action would not, in and of itself, have endangered Ward’s life, even as the insured’s conduct under review in the Callahan case, supra, in “just sitting in the car under the temperature and conditions prevailing” would not have endangered his life. [357 Mo. loc. cit. 196, 207 S.W.2d loc. cit. 285] Ward’s position on top of the station wagon subsequently resulted in his death only by reason of movement of that vehicle and thus by reason of Murrell’s conduct, for which we think (and there is no suggestion to the contrary) that Ward was not legally chargeable, even as it was said in the Callahan case, supra, that the insured was not legally chargeable with the extraneous force (namely, the weather) which resulted in his death. [357 Mo. loc. cit. 195, 207 S.W.2d loc. cit. 284] Particularly in situations of this character where “some human agency other than the act of the insured himself has entered into the doing of the things which produced the ultimate result” [Camp v. John Hancock Mut. Life Ins. Co., supra, 165 S.W.2d loc. cit. 281], the reported cases in this 5 and other 6 jurisdictions (many of which are cited in instant defendant’s brief) alike attest the overriding importance of the question as to whether the insured reasonably should have anticipated and foreseen injury as a natural and probable consequence of his voluntary action. So, in ruling instant defendant’s earnest contention that it was entitled to a directed verdict, the determinative question becomes whether we may say, as a matter of law, that, when Ward assumed a spread-eagled position on top of the station wagon, he reasonably should have anticipated and foreseen, as a natural and probable consequence of his action, that in Murrell’s driving of the station wagon to the Twilight Inn he (Ward) would be dislodged from his position and thereby might sustain injury or death.
In resolving this question and determining the submissibility of the case, we have, as is our duty, viewed the evidence in the light most favorable to plaintiff [Edwards v. Business Men’s Assur. Co.,
No case has been cited or found in which an insured has fallen or been thrown from the top of a moving motor vehicle, but our research has disclosed three cases in which benefits have been sought for the death of an insured riding on top of a moving train. In one of those cases [Cox v. Mutual Life Ins. Co. of Baltimore, Mo.App.,
In this case, we are concerned primarily with the related conduct of Ward, an exceptionally strong and virile man in the physical prime of life, and of Murrell, Ward’s fellow-workman, hunting companion, drinking comrade, and close friend. From the evidence adduced, we believe that the triers of the facts reasonably could have inferred and found that, when Ward assumed a spread-eagled position on top of Murrell’s station wagon, he (Ward) was in a position which enabled him to grasp and hold firmly to the top of the front doors — the same position in which he previously had ridden safely on top of other moving motor vehicles; that, on this occasion, Ward did grasp and hold firmly to the top of the front doors and did ride safely, without material movement or substantial change of his position, to a point near the location where his body was found; that Ward had no reason to doubt Murrell’s ability to drive on this occasion or to foresee that Murrell might not proceed with appropriate regard for the safety of his topside passenger; and, that Ward was thrown or caused to fall from his position by reason of some unusual force generated by and resulting from Murrell’s handling and driving of the station wagon, which said force was extraneous and external to Ward and unexpected and unforeseen by him. Consult Guaranty Trust Co. v. Continental Life Ins. Co.,
Without moralizing upon Ward’s participation in a protracted beer-drinking bout, that phase of the case may be dismissed with the sage comment of our Supreme Court, en banc (buttressed by that court’s citation of Proverbs 23:29-32, and our addition of Proverbs 20:1, from the inspired writing of the world’s wisest man), that: “Peradventure drinking makes some men surly, ugly, unaccommodating, and obstinate; some mellow, merry and yielding; some vivacious and witty; some stupid and sodden; and, since the days of Noah to this very day, all men the worse off in the long run.” Donaldson v. Donaldson,
In a second point, defendant assigns error in permitting plaintiff to testify that she had seen her husband (Ward) ride on top of motor vehicles and in permitting witness Thomson to testify concerning his ride on top of a 1958 Chevrolet station wagon (the same make and model of motor vehicle as that on which Ward rode on the night of his injury). Reception of this evidence is said to have been erroneous for three reasons, towit, (1) it “was improper rebuttal evidence because it did not rebut any evidence offered by appellant (defendant),” (2) “offered by respondent (plaintiff) for the reason that it tended to prove the safety of riding on top of automobiles, (it) was reversibly erroneous, being incompetent to show that such was free of danger,” and *424 (3) “no proper foundation in the form of showing similarity of circumstances was laid prior to introduction of such testimony.”
Defendant’s argument on the first reason runs along the line that the evidence under consideration should not have been received in rebuttal because “defendant (had) offered no testimony that decedent (Ward) had
not
ridden on tops of automobiles before the night of his death, nor that a person could not under any circumstances do so safely”; but, as we think, this reflects an unduly circumscribed view of what plaintiff properly might have offered as rebuttal evidence in the particular circumstances of the instant case. Plaintiff made a prima facie case simply by showing Ward’s violent death and, as is permitted in this category of actions, rested. Defendant, to whom the burden of going forward thereby shifted, then adduced evidence in support of its pleaded (and subsequently submitted) theory that Ward’s death was a direct and proximate result of “his voluntary and wanton exposure to unnecessary and known danger” in riding on top of Mur-rell’s station wagon, by reason of which “his death was neither unusual nor unexpected, and was the natural and probable consequence of said voluntary acts.” At the conclusion of defendant’s case, it became appropriate and proper for plaintiff thereafter to offer in rebuttal any competent evidence explaining, counteracting or repelling defendant’s evidence and the inferences reasonably deducible therefrom. O’Brien v. Equitable Life Assur. Soc. of U. S., 8 Cir.,
In support of the second reason under this point, defendant cites actions ex delicto such as Johnson v. Kansas City Public Service Co.,
Finally, defendant assails the evidence under discussion because “no proper foundation in the form of showing similarity of circumstances was laid.” With respect to plaintiff’s testimony concerning Ward’s prior rides on other vehicles, defendant’s
only
complaint for the quoted reason came in a motion to strike this answer, “well, actually there wasn’t much to it, he (Ward) just rode on top of the car,”
after
plaintiff in response to previous questions already had testified that she had seen her husband ride on moving vehicles. And, when the court suggested, without ruling defendant’s motion to strike, that counsel should “bring out a little bit of the circumstances,” the subsequent examination of plaintiff on this subject was conducted without further mention of the ground now urged. Thus, as to plaintiff’s testimony, the present complaint for failure to show sufficient similarity of circumstances was not properly presented to or expressly decided by the trial court and should not be ruled here. V.A.M.S. § 512.160(1); Pierce v. New York Cent. R. Co., Mo.,
The testimony of witness Thomson concerning his ride on a 1958 Chevrolet station wagon was experimental evidence, i. e., that of a witness who, after the occurrence giving rise to the suit, makes an experiment for the purpose of ascertaining the effect of certain action and then relates under oath the facts concerning such experiment. 2 Wigmore on Evidence (3rd Ed.), § 445, p. 432; State v. Harlan, Mo.,
The judgment is affirmed.
Notes
. O’Brien v. Equitable Life Assur. Soc. of U. S., 8 Cir.,
.Contrast Wendorff v. Missouri State Life Ins. Co.,
. Ieppert v. John Hancock Mut. Life Ins. Co., Mo.App.,
. Caldwell v. Travelers’ Ins. Co.,
. Sellars v. John Hancock Mut. Life Ins. Co., supra, 149 S.W.2d loc. cit. 409; Russell v. Metropolitan Life Ins. Co., Mo.App.,
. Mutual Life Ins. Co. of New York v. Distretti,
. Callahan v. Connecticut General Life Ins. Co., supra, 357 Mo. loc. cit. 190, 207 S.W.2d loc. cit. 285; Union Central Life Ins. Co. v. Cofer,