*1 194 S. Loyal (Mo. App.), W. Taylor v. Protective Ins. Co. W. Indemnity (Mo. App.), (2d) 60 S. 658. v. Union Co.
Newbill the nature a demurrer the instruction It follows given. rightly evidence circuit judgment
The recommends Commissioner be affirmed. court C., adopted foregoing opinion of
PER CURIAM: —The Sutton, is ac- the circuit court judgment opinion of the court. J., McCullen, JJ., P. and Becker cordingly Kostetter, affirmed. concur.
OCTOBER, 1937. Respondent, v. The Connecticut (Plaintiff), Woelfle Hortense Connecticut, Hartford, a Cor- Life Insurance Co. Mutual Appellant. poration (2d) 865. S. W. (Defendant), February 1, Opinion Appeals. 1938. filed Louis Court St. *2 Ely respondent. L. London for
Leahy, and J. Walther, HecJcer & *3 appellant. Web Jones, Hooker, Gladney Grand and A. Welker for & *4 beneficiary, to BENNICK, plaintiff, is an C. This action alleged recover under the accidental death benefit of be due $2000 policy of defendant. Con- insurance which was issued Connecticut,, Company Hartford, necticut Mutual Insurance Life Illinois,, Woelfle, Cairo, husband, life of her Dr. E. James September 9, who died on 1932. jury, plaintiff,
Tried to a verdict was favor of returned against defendant, aggregate $2,253.87, in- amount of principal for, Judgment cluded the sum sued with interest. accordingly; following unavailing rendered trial, motion for a new appeal defendant’s perfected to this court has been in the usual course.
By the policy agreed pay terms of its the accidental defendant provided death benefit receipt proof, for therein of due among “resulted, things, other the death of insured had directly bodily independently causes, injury of all other *5 solely through effected external, violent, means, and accidental of (except in drowning injuries case of or of revealed internal by an autopsy) by or there shall be evidence a visible contusion ’’ body. wound on the exterior of the joined parties upon question
Issue course between of whether the death of the under circum- insured had occurred such as to payment stances have made defendant liable for the ac- cidental death benefit.
Incidentally, insured, it is interest the time to note at death, policy suit, policies not had the in also had two by Company Loudon, issued London & Accident Guarantee consideration, England, which, policy as in the case of the now under against bodily through resulting injuries insured death effected means, directly independently all An other causes. accidental brought upon policies by plaintiff those in the District action Missouri, of the United States for the Eastern District of re- Court sulting in in plaintiff’s the return of a verdict favоr. That case of substantially present involved as are in course same facts bar, eonsising, agree, at case chief difference so counsel seem plaintiff’s in the extent to which medical witnesses were cross- Following plaintiff’s favor, appeal examined. the verdict in by company taken Appeals insurance to the Circuit Court of Eighth for the Circuit, it was held that a case been where had made the jury, though judgment was reversed and the cause re- on manded account of what the court conceived to have been im- argument proper part jury. on the counsel to the The opinion in that Court’s case is of obvious interest in the decision of bar, reported case at is to be found as London & Guarantee Company (C. A.), Accident (2d) Woelfle C. F. 325. At presented the outset оf this there is of whether acquired jurisdiction by Court below over person defendant’s virtue of upon superintendent the service of summons department statutory agent. insurance as defendant’s applicable 5894, statute is Missouri, Section Revised Statutes of (Mo. Ann., p. 4495), provides, substance, Stat. sec. any company incorporated by organized insurance under State, desiring anjr any laws of this agent transact business agents State, shall superintendent this constitute the insur- department statutory agent upon process may ance its whom be served proceedings against in all company any instituted such court of any this State or in State, court of the United States this and that process service of superintendent de- insurance partment binding, shall be valid and personal shall deemed long company, any service such “so as it shall have policies or outstanding liabilities in this State.”
In Corporation this case defendant is a Connecticut but licensed to State; and, compliance statutory do business in this require- ments, it has appointed superintendent heretofore of the insur- department agent ance acceptance process its service of policy applied behalf. The the insured and was its suit was
(cid:127)141 Illinois; beneficiary, Illinois; and his the to him in he died delivered at the time her cause of of Illinois herein, was a resident plaintiff she thereafter removed policy the However action on accrued. Louis, Missouri, a resident and was established a residence St. and service of summons was instituted
of Missouri at the time suit department. of the upon superintendent the insurance consistently defendant hаs taken Upon this admitted of facts state that not entitled to the benefit Section position the having Missouri at time of the 5894, not been a resident of either the policy insured; or at the time of the death of the issuance of the a she had meanwhile established residence circumstance policy her action not in Missouri to the institution of on did anywise bring statute, alter the situation serve her within enacted for the benefit of citizens or residents which was course only says) Missouri, (so respect defendant with to transactions- but or residents of Missouri with had or contracts made citizens ai- regardless foreign company, insurance of whether such transactions had or such contracts were made or without the State. were within Following sheriff’s retnrn of service defendant quash moved to same, quash motion to joinеd and when its was overruled it a jurisdiction its to the plea to answer merits. Thereafter, motion, jurisdiction plaintiff’s plea to the was stricken from the answer, regard the action of the court in that is made the first appeal. for our consideration on this ruling
We of the court think correct.' undoubtedly right any The test of the upon have service superintendent department of the insurance is whether policy liability “outstanding sued on is this State.” rel. ex [State Landwehr, 181, 318 191 300 Mo. S. W. ex State rel. v. Muller, App. 962, 969, (2d) 171, Mo. S. W. But to be 174.] “outstanding purpose in this State” of service of summons- brought it, upon policy in an action need not have been written ini Missouri, nor is it in all events essential have should been resident of Missouri at time of the death of the insured. “outstanding Policies or liabilities in this State” within meaning necessarily include, only the statute policies writtеn in Mis souri, policies but also written or liabilities assumed outside of this State, are owned and held residents of this State during period agency superintendent of the de insurance partment brought and at time suit thereon. In this instance, already pointed out, plaintiff we was a resident of Missouri instituted, at the time her action was superintendent and the department statutory agent insurance was the of defendant at process time service was had him. The service was therefore binding, valid and very and the facts which defendant based jurisdiction plea
its to the served themselves show want any proper basis for such contention. - Not does this conclusion conform to which was reached by the Appeals Circuit & Court London Guarantee Accident *7 Company Woelfle, supra, by but as a matter of .fact are advised counsel when the lower court overruled motion to defendant’s return, quash applied Supreme the sheriff’s to the defendant Court n for, refused, designed prohibition prohibit but was a to writ undertaking jurisdiction from lower court to assume over defendant’s by rule, therefore, person process. virtue of such service of We plea no error was committed in court’s denial of defendant’s jurisdiction. brings This us then in the to a consideration of those facts which to do with there was substantial whether directly resulted, evidence to show the death of the insured had independently causes, bodily solely and injury of all other from effected through external, violent, purview and means accidental within policy, means, plaintiff’s translated into the terms contention, by as ruptured actual from a aorta suffered the insured having accidentally ground the result of his fallen tо the while en- gaged game golf Egyptian a Golf Club course Cairo, located near Illinois. physician surgeon, engaged a insured was and and had been twenty-five practice profession of his approximately Cairo for
.years September 9, at the time of his death on 1932. was then He just sixty-one years age; weighed short of from one hundred eighty-five ninety athletically inclined; to one pounds; hundred was happy, jovial disposition. ruddy, had a complexion His was a,nd step quick elastic, according had evidence he always good enjoyed health; complain had never been wont to of feel- ing badly; and never had been to his confined home with illness any consequence. 5, 1932; September Day,
On which was Labor the insured and one early golf went out in the afternoon for a Block twosome of оn the grounds Egyptian Golf Club located eleven miles out n fromCairo. Though course, evidently this nine-hole it was difficulties, being quite without its described witnesses as .not hilly, irregular with the last three holes out part laid most (cid:127) of the course. discloses, game progressed
So far as the evidence had without until on approach hole, -misadventure seventh both when grass insured their balls in the along fairway. Block lost seemingly fifty The balls had fallen from one hundred to two hundred apart, caddy Block and his feet while went to one side of the fair- n ‘way ball, look for caddy Block’s insured and his went to the fairway . other side of to search for the insured’s ball. uncertainty some of events the chain is at this death, insured’s After the occurred. precisely as to what arises pro- benefit accidental death to make claim plaintiff camе statement while gave her a sworn Block policies, in the vided in the him fall while act the insured "saw golf with he playing ’’ gave fairway. Later he ball, number seven looking golf in which he stated that and her counsel similar statement picking Woelfle himself fairway No. I Doctor "when we were on saw getting up . When I saw him ground after a fall. . . ... I knew he had fallen ground from the he was on his side. Subsequently repudiated Block but I did not consider it serious.” they purported far as to show that he both of such statements so fall, though he that he actually seen the insured admitted did had though getting straighten up himself were at least see the insured ground. up from the having regarding
Block’s excuse for made the statements the fall requested collecting that he been to aid her in *8 though actually himself insurance, and that even he had not seen family willing fall, yet he had beеn the insured as old friend give upon plaintiff’s representation to the statements to that effect and husband, during illness, to him that her assurance his last had confided golf to her that he had fallen on course. caddy appear nothing
The insured’s would to have seen of the itself, only light and the he able to occurrence was throw that whereas he had noticed that the insured’s knickers were was clubhouse, he left clean when he had observed on the seventh fair- way leg right hip. that the had mud on it from to the In- the knee deed, later locker, the insured’s effects were removed from his just found that the knickers were soiled caddy it was had ob- day served them to be on the last that the insured had worn them. quite
It is apprehensions evident the insured himself had no airy consequences resulting at the time about serious fall, from his appears nothing since he to have said to Block about the matter and complaint any to no contrary, played have made sort. To the he course, though out the last doing three holes of so Block ob- higher served his score for those holes usual, than then, completion game, at the of the he and Block went back to the dressed, clubhouse and had their showers and after which the insured drove his car for the distance of eleven miles back to Cairo. is, however,
The fact the strain must even then have been bginning insured, to tell on since his arrival his at home lay about four he o’clock down for a on davenette, while thing which it most unusual him to do. In recounting the incident plaintiff him testified that when she came downstairs lying and found on davenette pale she observed that his face was and drawn. plaintiff and certain left home with five o’clock the insured About Carbondale, a distance family to of the to drive other members city. in that miles, daughter who lived
fifty-eight to visit a married party that he moved to the other members of It noticeable car, sluped over getting into the and sat slowly carefully in driving. doing the alongside his son-in-law who was the front seat nothing contrary custom, he had pale, and to his usual His face was ¿ say grandson trip. on the to to his little slowly he Arriving daughter’s home in Carbondale walked his at following his usual house, steps into the but instead up the permitting them to throw up grandchildren and picking his habit of his neck, them to touch he refused allow arms around their well, feeling that he After dinner he remarked was not neck at all. lay plain- he and consequence down until nine o’clock when and as a trip the return the insured did tiff started back alone Cairo. On though times, according ob- driving, there were conduct, slump would over the wheel and servance of his when he straighten up pavement off of before he be able to swerve would regain control car. following morning, During night, the insured as well as complained pain of a in his neck. He neverthe- severe Tuesday, as usual on but was unable to wait less went to office again in the patients. When he returned home afternoon on his lay davenette, left him on the word with to call down shortly might meeting that he six o’clock so attend before Rotary evening. which was be held seems that Club meetings, from a number of the fear- he had been absent and was suspended ful that under the rules of the club he would membership meeting if he attend the did not which was scheduled night.
Leaving Rotary meeting early hour, the at an stopped Club he way X-ray his dentist’s officeon his for the purpose having home of pictures hope determining taken in of his teeth of the the whether pictures might pain reveal for experiencing a cause the he was in his neck This and shoulder. fact would seem to that he indicate any suspicion still had no of condition and around his heart which his discomfort towas be attributed. During night plaintiff; complained he aroused
pain it; get was so he could not severe endure and had her hypodermic bag might give needle out of his so that he himself an injection morphine. During Wednesday of bed, remained in taking capsules preparation of his own for the pain. relief of his Thursday morning plaintiff On called in Dr. Rendleman, J. J. n who insured, an diagnosed made examination of the his trouble as influenza, prescribed accordingly. him аnd thought by both Dr. Rendleman and insured that slight improvement some avail, and to no hours, but of period a after all towas be.noticed the worse and turn took a sudden insured evening the Friday on to have been the time at assumed Bendleman Dr. from what died unforeseen an an added and developed had angina pectoris which . complication. . developed between controversy had later, after a Some months companies relative, insurance plaintiff and the benefit, death the accidental payment of entitled she was whether autopsy performed an and exhumed the insured was body experts other medical pathologists number of of a presence autopsy of the The result parties concerned. representing several pectoris as angina resulted, not frоm had show that death was -to at a of the aorta rupture a but from supposed, had Dr. Bendleman at the the valves a half above an inch and inch or an about heart. aorta with juncture one artery body, large about course, is the aorta, of The away through the blood is carried diameter, which a inches half parts the various ultimately distributed to the heart to be from layers, coat called an inner body. composed of three It is called the media, and an outer coat intima, a coat called middle and has a paper, is thinner than tissue The intima adventitia. a minimum afford designed nature as to smooth, so slick surface media, The through the vessel. flow of blood of resistance to the thickness, up is made one-eighth of inch is which about strength muscle, give to. of a character еlastic fibers tissue and purpose and so far as the reality important coat artery. It is in composed artery The adventitia is concerned. function of designed support as a as to serve loosely arranged muscular tissue so coats, the other supply and nerves which minor blood vessels energy. coat, the middle especially tear about a half primary that a or initial autopsy revealed lining, possibly the inner length occurred across inch had lining, aorta, extending through portion a middle , vessel, through but evidenced on the entire wall tear a through by only pin point opening which the blood outside slowly paricardial the heart. escaped into sac had enclosed pathologists a number of eminent and medical ex- put Plaintiff testified, substance, that their several perts, whо examinations of aorta had revealed that it had been of the insured’s free specimens tear; at least so at the site of the that there disease, from or had weakening .aneurysm wall; of the arterial evidence of been no necessarily been, rupture, to a the initial sudden due organ undoubtedly pressure super- within the stress rise *10 thing fall, fright, a by excitement, induced such had some scientifically possible that it is only partial; for one been for to.live qf rupture days, weeks,.with only partial aorta; or even for the that evidence showed the other fall which opinions in their that Monday, September on golf course on sustained the insured had by found which was the condition 1932, might produced have of the insured four in the death resulted had autopsy and which opinions Indeed their 9, 1932. fall, September days on after his a dis- question as all inasmuch uniformly to the effect were by autopsy what to be eliminated of the aorta condition eased could trauma which nothing left but disclosed, there was had autopsy had rupture which brought about to have served revealed. they had found admitted witnesses While tear, region of the healing around little, any, if evidence for four insured had lived the fact that the regardless of and this repair trauma, the absence of the days occurrence after the organ, in'the being pulsating aorta, that the by fact explained of rest and brought that state very things cannot be nature of healing. perfect quick inactively requisite is a which and other medical put pathologists on Defendant, part, its by plaintiff, who tes- employed with those experts equal eminence ruptured mere by substanсe, a normal aorta cannot tified, in specimens of the examinations their pressure; internal signs and shown definite aorta had taken of the insured’s had been near at or degeneration and disease evidences rupture un- complete opinions and that their rupture; time, the death of insured oc- doubtedly at one place taken simultaneously rupture. curring with the mind, remaining to the turn now of the case we With the facts error, have to do with admission certain assignments of instructions, per- plaintiff and the refusal part evidence on by otherwise, requested defendant. which were emptory and brings propriety into points The first of such plaintiff, objection having permitted over court’s action Block, in the defendant, impeach her own witness exception of in evidence of his inconsistent the introduction first instance bj^ testimony again herself statements, and written prior inconsistent oral statements Block had made to the effect to her. companion had been the insured’s that Block be recalled will it is that the latter’s accidental at the time claimed golf course received, collecting that in order to assist
injury was provided by policies the several of in benefits the accidental death given the insured he had her or been carried surance which had writing, purporting attorney statements some three different that he had the insured fall more or less seen to show with certaint}1" testimony fairway. taken he However when on the seventh actually fall, that he had seen the insured repudiated statement *11 truth, either because such statement had not been the which was facts, change еlse, his for such in his or as own excuse recital claims, agent, plaintiff because of influence that defendant’s local Kleb, brought him. one had meanwhile bear controversy an fashion. arose somewhat of unusual case, testify person Block did not at the trial of the but instead his deposition part plaintiff, was read in evidence on the and it was reading deposition plain- appropriate at intervals in the regarding the written statements formally tiff’s counsel introduced length taking at at which Block had been cross-examined his course, deposition. plaintiff’s impeaching so far as concerned Of own testimony complaining, of which is likewise defendant came of her own examination in course chief when she was called to reading deposition after the the stand had been concluded. appears, deposition Cairo, incidentally, that the had been taken in Illinois, resided, years where Block more than three its use in before the trial of case in the At local circuit court. the outset of his deposition played Block had testified that he and the insured had golf together day question, then, on the when asked what had happened they playing holes, while were the nine had answered nothing know, except unusual that I “there where we lost our Upon pretext refreshing ball.” his plaintiff’s recollection counsel him pointedly then asked whether he had seen the insured fall, to not, merely which his answer was that he had that he had straightening seén him ’up though himself getting “as he up ground.” Following from the actually his denial he seen fall, the insured counsel at once confronted him with his statements, inconsistent writtеn remainder of his ex- large part amination was in up taken inquiry with counsel’s explanation why the witness’ as to he repudiating was then original version of the facts. In approaching of whether the court in per- erred
mitting plaintiff, at ease, impeach the trial of the Block’s testi- by proof mony prior contradictory of his statements, thing one at true, least is and that is that set out to read Block’s evidence, deposition thereby she made him her witness so as to place position her in the vouching credibility. It is to be borne in mind that this is in no sense a obliged where by only possible law to call Block witness prove whom to matter, some voluntarily formal but that instead she elected to make testimony use of his which she specifically knew was directed material issue in case of whether an injury accidentаl had been Hulbert, sustained. Mo. 253 S. W. [State 764.] Now the rule is—and we do not understand that counsel are in any disagreement party calling about it—that a a witness will not impeach him allowed discredit showing that has he testimony contradictory of his
therefore made other statements that either stand, appear is first made the witness unless it by some himself, party, adverse has or artifice else the statement calling witness, entrapped party misled or into so that thereby gained advantage party in the adverse has case which enjoyed if would not have he himself had called the witness. [Clancy *12 Co., 646, v. 192 91 v. 615, 509; St. Louis Transit Mo. S. W. Beier Co., Bowen, St. 215, 876; Louis Transit 197 Mo. 94 S. W. State v. 279, 367; Burke, 363, 263 Mo. W. 172 S. State v. 132 Mo. S. W. 34 48; 793, 70 C. J. 1023.] witness, In words, impeachment other warrant of one’s to own always actual, feigned, there must exist the element of and not mere testimony surprise gives, at the which the and even then witness testimony in the is event that the of such affirmative character to party, prejudicial as to be favorable the adverse and therefore entrapped party calling to the has been misled or into the wit who ; Drummins, 632, ness. v. 274 Mo. 204 S. W. State v. [State 271 Bowen, supra; Gregory, 133, (2d) 47; 70 State v. 339 Mo. S. W. C. J. 1034.] necessarily surprise
In this of plaintiff’s instance is very to respect be to different considered with two situations confronted, surprise, any, first, Block, she was her if when taken, being testify at the time his refused that he deposition was to actually previous had the insured fall as he had recited in his seen extrajudicial regarding incident, second, statements her surprise, any, if deposition counsel set out read the when evidence. significance if
The truth is that accord full we all the circum- by plaintiff stances case аs related and to which she attributes hostility, extremely actually if Block’s it doubtful she was sur- prised testimony deposition even his at his at time was taken. Appeals It is of interest the Circuit Court of fit that likewise saw to Company in London Guarantee & Woelfle, out Accident v. may supra, that well plaintiff “it be doubted whether the could properly actually by she ivas surprised testimony.” claim that Block’s Indeed, ample suspicion there is basis for the that she reason deposition took Block’s did not defendant do so was purpose making inconsistency his matter of record, by so discrediting testimony, ultimately his if she permitted should be to do so, might whereby jury, being there be a situation created thus apprised repudiation previous of his of his statements, be would original prompted to believe version of the facts. assuming argument
But
sake of
that in reliance on Block’s
original
plaintiff
taking
deposition
statements
was misled into
surprised
testimony
at his
actually
he had not seen the
taking
fall,
insured
no
testimony
account of
fact that his
hardly
regarded
be
as
seen the insured fall could
having
testimony
insured,
amounted to affirmative
fact,
opinion that
fall,
had sustained no
we are still of the
Block’s
impeachment at the trial of
not in order. This for the
may
simple
greatly surprised
reason that no
matter how
taken,
naturally
have been
deposition
when Block’s
there could
surprise
imposition
have been no element of
or
to be considered when
years
three
later her
deposition
counsel undertook to read the
evidence at the trial of the case in the local
court. No one
circuit
knew better than
deposition
and her counsel what the
con-
tained;
obligation
evidence;
she was under no
it as
whatever
use
it, knowing
and the result is that
it
when she elected to read
what
contained,
by
she
onere,
must be held to have done so cum
we
precluded
proving
mean
while
in no
she was
sense
by any
fact of a fall
other
witness
circumstance available
her,
testimony
she
impeach
depo-
Ivas not entitled to
in his
Block’s
sition,
either
contradictory
introduction of his
written
statements,
impeaching testimony
her own
on the stand.
[Dunn
Dunnaker,
Largue,
App. 261,
Mo.
In re
198 Mo.
*13
273,
We plaintiff’s recognizes brief that she all too well the force of conclusion, this but seeks to avoid it in this case the insistence that inasmuch as she compel per- could not Block’s sonal at the trial attendance for the reason that he resided outside State, the necessity then taking of the deposition of his was the equivalent of hearing testimony of his at the trial. In other words, theory her is surprise actually that if element of is and legitimately present taking at the deposition of the of a nonresident witness whose attendance at court compelled cannot be as in of a witness who jurisdiction resides within court, of the then the question surprise necessarily must arise and be determined as of the time taking of the deposition witness, means, of course, that in her situation, view such a taking depo- sition is to regarded part as parcel and of the actual trial of the ease itself.
We think that this contention part on the plaintiff clearly is untenable. taking
The deposition a is part never of the trial of the cause taken, which it is only is designed a prеparatory step obtain or preserve may evidence which subsequently be used at the tidal if a situation arises admissible, where such is evidence and either party elects to make use of pointed it. As is out in Duxxxxv. Dunnaker, supra, the fact deposition a has beexx taken and is file the cause obligation creates no part on the one who has taken it to use it evidence, very (see. and indeed the statute 1753, R. S. 1929; Mo. Ann., 1753, Mo. Stat. p. 4023), sec. which con- right depositions pending in a cause whether
fers the
to take
State,
provides that
or without the
likewise
witnesses reside within
“conditionally,”
taken,
only to
depositions,
be used
such
when
are
is to
as of
competency
their
be determined
which means that
Killoren
sought
ex rel. v.
use is
to be made
them.
time when
[State
Burney,
App.
rel. v.
193 Mo.
(Mo. App.),
W.
State ex
S.
326, 334, 186 W.
S.
23.]
concerned, plaintiff
not
is
before us
as the
now
So far
evidence,
read
but when she did
deposition
obliged to read Block’s
himself,
questions
place of Block
it, it
for and took the
stood
right
impeach
the witness were
competency
its
deposition was-
time
as of the
be determined
therefore
382, 390, 21 W.
McCrey, 113 Mo.
S.
v.
offered
evidence.
[Messimer
and testified
himself taken
stand
example,
For
had Block
17.]
him
put
when she
plaintiff known
deposition,
in his
and had
as he did
out to read
knew when she set
unquestionably
she
on the stand what
obviously
surprise at
not have claimed
deposition, she could
would
very testimony
such circumstances she
which under
Ry.
Metropolitan
give.
Street
known that Block would
[Baker
Co.,
App.
181 Mo.
While there is some to be found of con actually рresent before the tention —at least where the witness is they may gather jury so that the truth his whole conduct and contradictory though respect to statements he bearing, even with may weight authority, have other times—the decided of made at accord, controlling are in is to the effect which our own decisions by proper impeach proof to a witness that even it becomes of where statements, contradictory extra-judicial such statements are prior his only impeachment, of his and are to purpose admissible for the not proof be taken as substantive and of the facts stated affirmative Burks, supra; Fesler v. Bowen, supra; threin. State v. v. [State 641; (Mo. Swift & (Mo. App.), (2d) 35 S. W. Steekel v. Co. Hunter 1042, App.), (2d) 806, S. W. C. J. 1153.] limiting purpose for given reason which is for thus which may they that if prior extra-judicial employed be is were statements proof therein, testimony to be taken as of the facts stated would hearsay. Chapman, (2d) be v. 337 Mo. 85 S. W. 400.] [Pulitzer ordinary hearsay depends of for course the form is that Of credibility competency of some probative its force sought produce it, to person other than the whom it is witness sought hearsay advantage to taken but it is nevertheless is be extra-judicial prior of own statements inconsistent with the witness’ testimony stand, statements, in since either event the even admittedly given though given, subject not were under oath of it test cross-examination. C. is that evidence J. So [22 206.] prior extra-judicial contradictory statements the witness of his testimony only on the purpose stand are admissible for of his impeachment, hearsay their as precluding character them from hav- ing probative independent value as evidence in the case. C. J. [70 1062.] In Chapman, supra, lay Pulitzer v. Supreme our did Court down the rule that so far impeachment as concerns the of a witness deposition only in cause, may impeached by he be con tradictory appear therein, contradictory statements which but his may accepted statements also be as proof substantive the facts far they competent stated so probative are and have value. This testimony for the reason that deposition given is both under subject oath and right cross-examination, to the and is therefore hearsay. not to be However, characterized as it to be is noted that opinion court its specifically probative refused to hold that extra-judicial statements, should likewise be accorded value arе respects, and we therefore left to follow the usual rule such are purpose which is such statements admissible impeachment, assuming, course, is one the case where the impeachment order, is in the witness a situation which we have shown did not exist in the instance under consideration. speaks duty sought
Plaintiff defendant’s instruction limiting purpose statements were to. enough say proposition, merely considered. As to this it is that under the facts this the statements were not admissible any purpose, nothing by way there consequently limit of an instruction. appreciate
We fact London & Guarantee Accident Company Woelfle, supra, Appeals, passing Circuit Court of question, the same found that no error had been committed. observed, however, to be in that ap- case the matter was *15 proached from the stаndpoint plaintiff’s right of to have cross- hostility. The his cross- of appearance Block the
examined refreshing his purpose of for the own witness of one’s examination laying for a foundation of purpose recollection, or even the intro matter than surprise, quite is a different proper claim of extra-judicial evi statements prior contradictory of duction his subject to and limits proper one is within reasonable dence. The Patton, 255 Mo. (State v. of trial court the sound discretion 801, 1025), Gregory, supra; 70 C. J. 164 S. W. State surprise, only circumstances those permitted but other is take the case from prejudice serve to entrapment, and exist which the im prohibits general rule which application within peachment of one’s own witness. n having permitted plaintiff to for the So it that error follоws contradictory extra- impeach his proof Block witness oral, the judicial judgment rendered statements both written and is that of stand, left to be considered cannot and jury the issue to be for the whether case made there resulted, directly independently of the and whether death insured causes, bodily solely through external, all other effected injury violent, means. and accidental original that
Disregarding actually Block’s he had seen statement opinion his fall, are admis- insured we nevertheless though straighten up himself “as sion he at saw him least getting caddy’s testimony up ground,” coupled from the with the regarding on the insured’s knickers observance mud fairway, seventh affords a basis substantial from which the fact Coneededly may legitimately fall at of a be inferred. certainty might evidence the fact of a fall with did show wishеd, strong compelling it as the but was circumstances particular permit, perhaps no less definite than and was recovery many depend is to be eases where must on cir- found cumstantial evidence.
Nor plaintiff’s medical evidence unreasonable unbelievable hold, as defendant but its effect was would us instead possibility disclose facts and cir- scientific what actual Bearing cumstances of the ease tend otherwise establish. mind that the autopsy opening through revealed a minute but outer through very wall aorta blood nature which the things seeped regard slowly, having could have due insured, good health, begun fact a man previous that the had first shortly to be after steadily affected his fall and had then become progressively following worse until his death occurred on Friday, it great jury acсept plaintiff’s is no wonder that the chose to version of the cause of death.
But defendant insists a verdict in favor could rest only on surmise, speculation, conjecture in view of admis- *16 that on cross-examination sions of own witnesses medical such, instance, as the fall, other than a numerous occurrences the produce to swinging golf club, a no less have could suffie.ed strain brought any ruptured aorta, if have sudden character to it that the it, might or is claimed upon stress than the fall which insured received. burden, the case is con as this feature of plaintiff-’s
Now so far the cerned, that establishing by substantial evidence is that of upon fall rupture from an aorta, insured’s accidental resulted go burden, golf to part is as a of her required, She not course. conceivably injury might possibility so far as to exсlude that alleged (Cech have in some other than that been received manner 509, 616, (2d) Co., 601, 20 S. W. 323 Mo. Mallinckrodt Chemical (2d) Haid, 107, 119, W. Mo. 28 S. State ex rel. v. substantial, evidence 102) there is ; it be once and-if assumed in legitimately to be it inferred may had from which be course, golf fall on the injury sured’s did result from an accidental to right then have her submitted is not to be denied the she happening jury actual unless evidence discloses own injury, might some other occurrence which as well caused left indeed be jury event a verdict in her favor would upon speculation conjecture. to 'rest mere and however, insistence is, regardless of defendant’s fact any no other occurrence matter, there was to show actual evidence might attributed. rupture aorta which the the insured’s club, any of numerous Conceding swinging golf that the оf a one force or things, produced other if an unusual character to have pressure brought wall, might the aorta indeed have about within always mind, injury, there is this ultimate situation be borne in- there whereas was substantial evidence adduced that golf very moment sured did fall and that from that course steadily began give evidence, growing on his actions and conduct him, pronounced, more all was progressively not well with violent any there not one word of other evidence unusual occasion, occurrence on that nor was there least indication any immediately injury to the insured until after the fall had been contrary, just sustained. To the as Block himself testified by plaintiff’s interrogated respect counsel with to what happened during nothing “There the afternoon: unusual that ’’ I know, except where we lost оur ball. conclude, despite
So con- we earnest defendant’s insistence to trary, jury case is one for evidence that the to determine legitimate inferences to be drawn therefrom. assigned may
Other matters as error and not referred herein appear upon a retrial of the ease. by the judgment rendered the error noted the follows that remanded, reversed and the cause should be circnit court so recommends. Commissioner Bennick, C., adopted foregoing opinion of PER CURIAM: The is, court judgment of the circuit opinion of the court. The as the J., Hostetter, P.
accordingly, the cause remanded. reversed and *17 McGullen, JJ., concur. Becker Kemp, F. Person ex rel. Guardian of Missouri James
State Glendy m., Relator, v. Hon. Kemp, L. n. c. Estate James City Judge within Arnold, Probate Court Respondent. 113 S. W. (2d) 143. Louis, Missouri, of St. February Opinion Appeals. 1938. filed St. Louis Court of Lyng Reardon & H. Martin and John for relator.