McKeon v. National Casualty Co.

• Citation: 270 S.W. 707,216 Mo.App. 507
• Parties: WINIFRED McKEON, Appellant, v. NATIONAL CASUALTY COMPANY, Respondent. *
• Decision Date: 03 January 1925
• Court: Court of Appeal of Missouri (US)

270 S.W. 707

216 Mo.App. 507

WINIFRED McKEON, Appellant, v. NATIONAL CASUALTY COMPANY, Respondent. *

Court of Appeals of Missouri, St. Louis

January 3, 1925

Appeal from the Circuit Court of the City of St. Louis.--Hon William H. Killoren, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Bass & Bass, John Grossman and James J. O'Donohoe for appellant.

(1) Plaintiff made out a prima-facie case by introducing the policy and proving that insured's death resulted from external, violent injuries, and cast the burden on defendant of pleading and proving an affirmative defense. Lafferty's Adm'r v. Kansas City Cas. Co., 209 S.W. 942, affirmed 229 S.W. 750. That the injuries were sustained accidentally will be presumed. Merkel v Railway Mail Ass'n, 205 Mo.App. 484 (same case second appeal, 254 S.W. 368, writ of certiorari denied); Wheeler v. Fidelity & Cas. Co., 251 S.W. (Mo. en banc) 924; Kahn v. Metropolitan Cas. Co., 240 S.W. (Mo. en banc) 793; O'Connor v. Columbian Nat. Life Ins. Co., 208 Mo.App. 47; Goodes v. Order of U. C. T., 174 Mo.App. 330; Hooper v. Standard L. & Acc. Ins. Co., 166 Mo.App. 209; Riska v. Railroad, 180 Mo. 168; Meadows v. Life Ins. Co., 129 Mo. 76; Cronkhite v. Travelers Ins. Co., 75 Wis. 116; Jenkins v. Pacific Mutual, 131 Cal. 121; Burnham v. Interstate Casualty Co., 117 Mich. 142; Van Eman v. Fidelity & Casualty Co., 201 Pa. 537; Caldwell v. Iowa, S. T. M. A., 156 Iowa 327; Peck v. Association, 5 N.Y.S. 215; Travelers Ins. Co. v. Hunter, 30 Tex. C. C. A. 489; Preferred Acc. Ins. Co. v. Fielding, Admr., 35 Colo. 19. Death by encounter or murder is death by an accidental event. Eicks v. Fidelity & Cas. Co., 253 S.W. (Mo. en banc) 1029; Berryman v. Southern Surety Co., 285 Mo. 379; Lovelace v. Travelers P. Ass'n, 126 Mo. 104; Collins v. Fidelity & Cas. Co., 63 Mo.App. 253; Phelan v. Travelers Ins. Co., 38 Mo.App. 640; Harper's Admr. v. Ins. Co., 19 Mo. 506; Overton v. Ins. Co., 39 Mo. 122; Travelers P. Ass'n v. Fawcett, 104 N.E. 991; Kascautas v. Federal Life, 185 N.W. 125; Supreme Council v. Garrigus, 104 Ind. 133; Richards v. Travelers Ins. Co., 89 Cal. 170; Campbell v. Fidelity & Cas. Co., 109 Ky. 661, 170; Travelers Ins. Co. v. McConkey, 127 U.S. 661; Ripley v. Railway Pass Assur. Co., F. Case No. 11,854, affirmed 16 Wal. 336; Robinson v. U. S. Mut. Acc. Assn., 68 F. 825; Travelers' Ins. Co. v. Dupree (Ala. Ct. App.), 82 So. 579; 1 Cyc. 290; 1 C. J. 431 and 497; 14 R. C. L. 1437. (2) Excepted risk is not available unless pleaded and proven. Harrison v. Business Men's Ass'n, 133 Ark. 163; Bankers Health & Acc. Ass'n v. Wilkers, 209 S.W. 230; Vernon v. Traveling Men's Ass'n, 158 Iowa 597; Ward v. Interstate B. M. Acc. Ass'n, 185 Iowa 674; Red Men's F. Ass'n v. Rippey, 181 Ind. 454. No risk is excepted by the policy and the court should have given plaintiff's peremptory instruction or sustained her motion for judgment non obstante veredicto. Dezell v. Fidelity & Cas. Co., 176 Mo. 253; Sears v. Ins. Co., 108 Kans. 516; Preferred Accident Ins. Co. v. Fielding, 35 Colo. 19; Railway Mail Ass'n v. Moseley, 211 F. 1 (cases cited); Richards v. Standard Accident, 58 Utah 622; Union Accident v. Willis, 44 Okla. 578; Nat. Life & Acc. Ins. Co. v. Hodges, 244 S.W. 863; American Mut. Benefit Ass'n v. Joshua, 200 S.W. 260; Starr v. Aetna Life, 41 Wash. 199; Allen v. Travelers Assn., 163 Iowa 217, 222; Hutchcraft's Ex'r. v. Travelers Ins. Co., 87 Ky. 300; Utter v. Travelers Ins. Co., 65 Mich. 545. Motion for judgment non obstante veredicto is available to plaintiff under Missouri practice. King v. Grocer Co., 188 Mo.App. 235. And where, as here, there is no tenable defense, the reviewing court reverses and remands with directions. Dezell v. Fidelity & Cas. Co., 176 Mo. 253; Renfro v. Ins. Co., 148 Mo.App. 430; Seeburger v. Ins. Co., 253 S.W. 485; Shearlock v. Ins. Co., 193 Mo.App. 430. (3) Defendant's modified instruction No. 2 is erroneous, for reasons, amongst which are: (a) The policy does not except death from "a revolver or pistol duel." (b) There is no evidence that insured "entered into a revolver duel" with the officers. The word "duel" has a well-defined meaning. Davis v. Modern Woodmen, 98 Mo.App. 713; Baker v. Supreme Lodge, 103 Miss. 374; Ward v. Commonwealth, 132 Ky. 636; State v. Fritz, 133 N.C. 725; Kennedy v. Aetna Life, 242 Ill. 396. (c) Exposure to unnecessary danger is not made an excepted risk by the policy. (d) Neither is same pleaded. And instructions cannot enlarge on the policy and pleadings. (e) Insured did not expose himself to unnecessary danger. Bateman v. Ins. Co., 110 Mo.App. 443; 2 Bacon, Sections 525, 526, and cases cited. (f) The word "duel" is not defined. (g) The meaning of the phrase "exposed himself to unnecessary danger" is not given. (4) Defendant's evidence to the effect that the insured's reputation was that of a bank robber, burglar, highwayman, dangerous gangster and thief, as well as the divorce petition, were incompetent, highly prejudicial and calculated alone to inflame the passions of the jury. Knights of M. of W. v. Shields, 156 Ky. 270; Sikes v. Keller, 197 S.W. 311, 313; U. S. Annuity & Life Ins. Co. v. Peak, 122 Ark. 58 (cases cited); Great Western Life Ins. Co. v. Sparks, 38 Okla. 395, 49 L. R. A. (N. S.) 724, and note. (5) The stipulation that "No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy," is void and of no binding effect, and suit was not prematurely instituted for the following reasons: (a) Because said stipulation conflicts with section 2166, R. S. 1919. Karnes v. Ins. Co., 144 Mo. 413; Richardson v. Railroad, 149 Mo. 311; Roberts v. Modern Woodmen, 133 Mo.App. 207; Cobble v. Royal Neighbors, 291 Mo. 125; Kanz v. Royal Neighbors, 13 Mo.App. 341. (b) Because defendant disclaimed all liability under the policy and action could be brought at once, without waiting for expiration of the sixty days. Baker & Lasley v. Phoenix Ins. Co., 221 S.W. 761; Hosmer Bros. v. Ins. Co., 80 Mo.App. 419; Phillips v. Ins. Co., 14 Mo. 220; Young v. Ins. Co., 269 Mo. 1; Martin v. Ins. Co., 256 S.W. 120; 4 Cooley, pp. 3959-3961 (cases cited); 7 Cooley, 3959 (b), pp. 1668-1669 (cases cited).

Leahy, Saunders & Walther for respondent.

(1) The death of the assured was not an accident within the meaning of the policy. Berryman v. Southern Surety Co., 285 Mo. 379, 394; Taliaferro v. Travelers Protective Association of America, 80 F. 368, 370. Phelan v. Travelers Insurance Co., 38 Mo.App. 640, 645; Collins v. Fidelity & Casualty Co., 63 Mo.App. 253; Martin v. Peoples Mutual Life Ins. Co., 235 S.W. 389; Meister v. General Accident, Fire & Life Assurance Corp., 179 P. 913, 4 A. L. R. 723; Prudential Casualty Co. v. Curry (1914), 10 Ala.App. 642; Metropolitan Casualty Co. v. Chambers (1918, Ark.), 206 S.W. 64; Price v. Occidental Life Ins. Co. (1915), 169 Cal. 800. (2) (a) It was competent to show that the assured's reputation was that of a bank robber, burglar, highwayman, dangerous gangster and thief, in connection with other evidence showing the lawful purpose of pursuit by the officers. (b) The petition in the divorce case was competent as an admission of plaintiff against interest. Kirkpatrick v. Metropolitan Street Ry. Co., 211 Mo. 68; Dowzelot v. Rawlings, 58 Mo. 75.

DAVIS, C. Daues, P. J., and Nipper, J., concur; Becker, J., in result.

OPINION

DAVIS, C.

This is an action on an accident insurance policy issued by defendant on the life of Thomas F. McKeon, with his wife, the plaintiff, named beneficiary therein. The jury returned a verdict for defendant, and plaintiff, after the court below overruled her motions for a new trial and for judgment non obstante verdicto, appealed from the judgment entered thereon.

Plaintiff's evidence tends to show that defendant on or about March 1, 1919, issued to plaintiff's husband its policy C303988, in which she was named beneficiary, the pertinent parts of which are as follows:

"In consideration of the payment of a policy fee of $ 3, and of the premium $ 6.15, and of the statements and agreements in the application herefor, a copy of which is endorsed hereon or attached hereto.

"Does Hereby Insure Thomas F. McKeon, of St. Louis, Mo., the person described in said application, who states his occupation to be that of not working, I have an income, duties, collecting income, subject to the provisions and conditions herein contained and endorsed hereon, from 12 o'clock noon, Standard Time, of the day this contract is dated, until 12 o'clock noon, Standard Time, of the first day of March, 1920, and for such further time as may be stated in the renewal receipts.

"Paragraph A. Accident Indemnity for Total Disability. At the rate of Sixty Dollars per month, against total loss of time, not exceeding thirty-six consecutive months, resulting solely from bodily injuries effected directly and independently of all other causes, by the happening of an External Violent and Accidental event, and which immediately, continuously and wholly, from date of accident, disable and prevent the insured from performing any and every duty pertaining to his business or occupation.

"Paragraph B. Partial Disability. Or, if injuries caused and occurring as stated in Paragraph (A), shall immediately, wholly and continuously, from date of accident, disable and prevent the insured from performing one or more important daily duties pertaining to his occupation, or in event of like disability immediately following total disability, or in event of total disability...