Postler v. Travelers Ins. Co.

SLOSS, J.

The plaintiff, wife of Gustave Postler, was the beneficiary named in two policies of accident insurance issued by the defendant to said Postler. By each of the policies Postler was insured in the principal sum of one thousand dollars “against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means (suicide, whether sane or insane, is not covered).” The complaint alleged that on the twenty-seventh day of January, 1911, said Gustave Postler “received a bodily injury through external, violent and accidental means . . . to wit, by the discharge of a revolver in the hands of one Ed. Kripp, which said injuries caused the immediate death of said Gustave Postler.” These allegations are denied by the answer, which also set up as a separate defense that Postler committed suicide.

The case was tried before a jury, which returned a verdict in favor of plaintiff for the full amount claimed on both policies. The defendant appeals from the judgment entered upon this verdict, and from an order thereafter made denying its motion for a new trial.

There was some conflict in the evidence, but the facts which we are about to state appear in the testimony without substantial dispute. Postler was a painter, living with his wife and son in San Francisco. He had visited the Saratoga Club, a gambling resort located on Mason Street in the said city, and had, apparently, lost money in gambling there. On January 27, 1911, Postler left his home accompanied by his son, a boy of about sixteen years. They were riding in a buggy. After going to various places, among others a hardware store where Postler bought a revolver and some cartridges, he, with the boy, drove to the location of the Saratoga Club on Mason Street, arriving there about noon. During

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the morning Postler had told his son that he was going to get back the money he had lost. Leaving the boy in the buggy, Postler went up in the elevator to the rooms of the Saratoga Club. There he found four or five men, among whom was one in charge of the place. ' After a few minutes, he drew his revolver and ordered the men present to hold up their hands. Two or three of them, including Kripp, ran out of the room, and Kripp found his way to the sidewalk, where he encountered a police sergeant, from whom he obtained a pistol. Learning from Postler’s son that the man upstairs was the boy’s father, Kripp asked the boy to go up with him to induce the father to leave peaceably. Kripp and young Postler then went up in the elevator. In the meanwhile, Postler had demanded of the men whom he was holding under cover of his revolver the sum of one thousand dollars, saying that he had come up there to get the money and if he did not get it he was going to kill somebody and kill himself. Goodrich, the man in charge, told him he could have the money and produced it. He counted out one thousand dollars, which he placed on a table. Postler took the money and put most of it in his pocket, some part of it dropping to the floor in the process. At this stage of the affair, Kripp and the boy appeared. The boy urged his father to give up the money, but the father put him aside. Postler then observed Kripp standing at the door of the room and ordered him to come in. Kripp turned and ran, followed by Postler. The two were thus brought into a room adjoining the one in which the boy and the other men stood: There was an exchange of shots between Kripp and Postler, and Postler fell mortally wounded. The evidence does not make it clear whether Postler or Kripp fired the first shot.