Pape v. ætna Casualty & Surety Co.

• Decision Date: 06 May 1941
• Docket Number: No. 25698.,25698.
• Court: Missouri Court of Appeals
• Parties: PAPE v. ÆTNA CASUALTY & SURETY CO.

150 S.W.2d 569

PAPE v. ÆTNA CASUALTY & SURETY CO.

No. 25698.

St. Louis Court of Appeals. Missouri.

May 6, 1941.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be reported in State Reports."

Action by Charles F. Pape against the Aetna Casualty & Surety Company on a robbery and theft policy. From a judgment for plaintiff, defendant appeals.

Reversed.

Moser, Marsalek & Dearing, of St. Louis, for appellant.

Wilbur B. Jones, Franklin Ferriss, and Salkey & Jones, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

We adopt with minor changes the statement of issues and facts as made by appellant, which is fair and complete, as follows:

This is a suit upon a robbery and theft policy issued to plaintiff by defendant, Aetna Casualty & Surety Company. The policy defined the term robbery, as used therein, as a felonious and forcible taking of insured property from any person whose property is covered by the policy (a) by violence inflicted upon such person or by putting him in fear of violence; (b) by any other overt felonious act committed in the presence of such person and of which he was actually cognizant; (c) who has been killed or rendered unconscious by injuries inflicted maliciously or sustained accidentally.

The petition alleged that on or about March 17, 1939, plaintiff suffered a loss by robbery at Decatur, Illinois, as a result of a felonious and forcible taking of property from him (a) by violence then and there inflicted upon him, (b) he being then and there rendered unconscious by injuries inflicted maliciously or sustained accidentally.

The petition alleged compliance with the terms of the policy, and that it was in effect at the time of the occurrence hereinafter described. Plaintiff alleged the value of the property taken as $871.75, and sought to recover said amount, with damages and attorneys' fees because of alleged vexatious refusal of defendant to pay.

Defendant's answer admitted execution and delivery of the policy to plaintiff, and that it was in effect at the time of the alleged robbery, and denied generally the remaining allegations of the petition.

The case was tried before a jury, and resulted in a verdict and judgment for plaintiff in the sum of $871.75, as loss under the policy, $29.44, as interest, and $250, as attorneys' fees, a total of $1,151.19. On motion for a new trial, the trial court ordered a remittitur of the $250 awarded as attorneys' fees, and upon compliance by plaintiff with the order, defendant's motion for a new trial was overruled. Defendant thereupon duly appealed to this Court.

The facts as developed during plaintiff's case are as follows:

The plaintiff was a man approximately sixty-eight years of age at the time of the alleged robbery, and was the St. Louis sales representative for the Hutchins Car Roofing Company. He had taken out the policy in 1937, for a term of three years.

His work required him to travel frequently, and on March 16, 1939, he went from St. Louis to Decatur, Illinois, in which city he registered at the Orlando Hotel. During the morning of March 17th, he called on some railroad officials in Decatur, and borrowed a car from one of said officials to drive to Springfield, Illinois. He arrived at Springfield in time for lunch, but did not get to see the people he intended to talk to, and drove back to Decatur. He took the car back to the owner, talked with him for a time, drove to the owner's home with him, and was later taken back to his hotel, arriving there at 5 or 5:30 p. m. Plaintiff went to his room to clean up, and after doing so decided to have a highball before dinner. He mixed a drink of Highland Cream Scotch whiskey, ice, and plain uncharged water. He had a bottle of whiskey in his room, having purchased it the day before, upon his arrival in Decatur. After consuming this drink he had dinner in the hotel. After dinner he read papers in the lobby of the hotel, and decided to go to a show.

He returned from the show about 10:05 or 10:10 p. m., and tried to get later papers to read. Being unable to secure them, he decided to go into the cocktail lounge. He sat at the bar and ordered and consumed a second whiskey highball.

There were a number of groups dancing and dining in the room, and plaintiff noticed two ladies sitting at a table alone. They were neatly dressed and plaintiff thought, "all right." Being fond of dancing, plaintiff went over to their table and asked one of them to dance. She agreed, and after dancing, plaintiff sat down at their table. He invited them to have a drink, and all three had Scotch highballs, this, according to plaintiff's evidence, being his third for the evening. After that plaintiff danced with the woman again, and had a fourth highball. By then it was about midnight and everyone had to leave the cocktail lounge. As plaintiff and the two women got to the lobby, he invited them to his hotel room for a nightcap, and they accepted. Arriving in plaintiff's room, plaintiff took some of the ice which he had ordered and put it in three highball glasses, and got the whiskey bottle from the dresser. The glasses and ice were on an octagonal table in the corner of his room, the bureau on the opposite wall. The room was about ten feet wide at this point. From the whiskey bottle he poured what he considered to be a "jigger," that is, about an ounce, of whiskey into each of the glasses, and was about to put vichy water (which he had purchased earlier in the day and brought to his room) in the glasses when one of the ladies asked to be allowed to do that — that she had never squirted vichy water before. He agreed, and while she did so, plaintiff turned around to replace the whiskey bottle on the dresser. He said it was about ten steps, and his back was turned not more than ten seconds. He walked back to the table, one of the women handed him a glass, and the three of them sat down and were drinking, talking, and laughing. He detected nothing whatever wrong with the drink. At no time had he seen either of the women have anything with them that could be used to drug a person, nor did he at any time see any evidence at all that anything had been put in his drink. He didn't know whether he got a drug or not. No one struck him or used any force against him.

From some time after the drink was consumed, either immediately thereafter or a few minutes later, plaintiff said he didn't recall anything further. He was talking and kidding with the women and he gradually "slipped out".

The next morning plaintiff woke up at 6 a. m., an hour later than his usual hour for arising. It was his custom to sleep in pajamas, but when he awoke he was attired in his union suit. His socks were off. He put on the bed lamp to see what time it was, but his wrist watch was not on his wrist. He felt a little groggy and got up and went to the bathroom, thinking cold water might freshen him up a bit. He had a kind of nauseated feeling and felt a "little funny" in the stomach, but did not have a headache. While washing he noticed his ring was gone. Upon going to the closet to get his shirt he noticed the cuff links were gone. He thought, "Well, a lot of things could have happened", and looked in his pants pockets and found his money had been taken. Besides the ring, money, and watch, a pen and pencil set, two neckties, and a leather zipper case were also missing. His clothes he found in the closet on hooks, not on hangers as he always put them.

When plaintiff awoke, the door of his hotel room was unlocked, and the key was lying on the floor.

Plaintiff tried to call the manager, but the manager hadn't yet come on duty. When he did come in, plaintiff told him what had happened, and the police were called in. Officers Trueblood and Stanger of the plainclothes force arrived, talked with plaintiff, and searched his room, but found none of the articles. Plaintiff and the officers later in the morning searched for the women but failed to find them. Before breakfast on the morning in question, plaintiff wasn't hungry, and took a drink of whiskey out of his bottle, which made him feel a little better. He stated that he usually ate heartily at breakfast. He returned to St. Louis that morning, Saturday, March 18th, and on the following Monday made a report to defendant's office, in person, giving a statement of the facts substantially as related in his testimony.

He brought his bottle of whiskey home with him from Decatur and drank the whiskey at various times, and felt no ill effect.

Generally, plaintiff said he was in good health, but had had low blood pressure, for which Dr. Floyd Bennett had advised him to drink one or two Scotch highballs in the evening before going to bed. He stated that the drink he had in his room before dinner on March 17th had no effect on him, and that he had often had as many as four highballs in an evening, but had never been rendered unconscious as a result. He always drank the same kind of whiskey, and almost always mixed it with plain water. The drinks which he had ordered in the bar had all been with plain water. He had the vichy water and highball glasses in his room in case he had to entertain railroad men. He stated that on several New Year's parties about fifteen to eighteen years ago he had become intoxicated, but had always been able to drive home, and had not been intoxicated since then. He had not been ill the next day after such occasions, nor had headaches, but had felt "a bit weak and down and out," had a bilious feeling in his stomach. On the road, plaintiff's usual hour for retiring is from 10 to 11:30 p. m.; at home, 11 p. m.

None of the missing articles were ever discovered or returned.

The depositions of Mr. Myers, the manager of the Orlando Hotel, and of Officers Trueblood and Stanger were read in evidence, substantiating plaintiff's testimony as to what had happened on the morning of the 18th of March, after plaintiff spoke to the manager.

Dr. Floyd W. Bennett...