Berne v. Prudential Ins. Co. of America

• Decision Date: 06 June 1939
• Docket Number: No. 24989.,24989.
• Parties: BERNE v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

129 S.W.2d 92

BERNE v. PRUDENTIAL INS. CO. OF AMERICA.

No. 24989.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

Suit by Pansy Berne against the Prudential Insurance Company of America to recover the sum of $540 and interest on two life insurance policies. From an order granting the defendant a new trial, the plaintiff appeals.

Judgment affirmed and cause remanded.

Julius Block, Cecil Block, and Arnot L. Sheppard, all of St. Louis, for appellant.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis (Ralph W. Hyatt, of Newark, N. J., of counsel), for respondent.

McCULLEN, Judge.

This suit was brought by appellant as plaintiff against respondent as defendant to recover the total sum of $540 and interest on two policies of life insurance issued by defendant insuring the life of Louis Berne, deceased, who was the son of plaintiff.

The suit was begun in a justice of the peace court in the City of St. Louis, and thereafter was appealed to the Circuit Court of said city, where it was tried before the court and a jury, resulting in a verdict in favor of plaintiff against defendant for the full amount sued for plus interest. Defendant's motion for a new trial was sustained on the ground that the trial judge had erred in refusing to sustain a peremptory instruction in the nature of a demurrer to the evidence requested by defendant at the close of the entire case. From the order of the court granting the new trial plaintiff has duly appealed to this court.

It is conceded that the two policies sued on were in full force and effect at the time of the insured's death. Each of the policies contains what is called a double indemnity clause, wherein defendant agreed to pay, in addition to any other sums due under the policies, and subject to the provisions thereof, an accidental death benefit equal to the face amount of the insurance stated in said policies, upon receipt of due proof that the insured "after attainment of age 15 and prior to attainment of age 70 has sustained bodily injury, solely through external, violent, and accidental means, occurring after the date of this policy and resulting in the death of the insured within 90 days from the date of such bodily injury while this policy is in force * * *."

The issue at the trial was whether or not plaintiff was entitled to the additional amount of insurance provided for on proof of death of the insured solely by external, violent, and accidental means.

It is not disputed that the insured was shot by one Leonard Lehmkuhl and died as a result thereof within less than ninety days thereafter.

Plaintiff contends that the order of the trial court sustaining defendant's motion for a new trial was erroneous. Counsel for plaintiff argue that the policies sued on having been introduced in evidence, and it having been shown that they were in full force and effect at the time of the insured's death and evidence having been introduced by plaintiff showing that the death of the insured was caused by violence, plaintiff made a prima facie case which could not be overcome by any evidence that might be introduced by defendant. Defendant concedes that plaintiff made a prima facie case by the introduction of the policies containing the death by accidental means clause, and her own testimony; and further concedes that a presumption of accidental death arose from the proof of death by violence, but contends that such presumption was overcome by defendant's evidence which shows that the insured was engaged in the commission of a felony and that he was the aggressor at the time he was shot.

In addition to identifying the policies sued on and introducing them in evidence, plaintiff testified that she was the mother of Louis Berne, the insured; that the insured was nineteen years old at the time of his death; that, on the Sunday before Christmas, 1934, having been notified by a police officer that her son had been shot, she went to the hospital where she saw her son, and saw that he had been shot; that he died Christmas Eve, 1934. She admitted she had been paid by defendant the face amount of both policies.

At the close of plaintiff's evidence, defendant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give.

Defendant then called as a witness Leonard Lehmkuhl, who testified that he and a Mr. Mozenski had been asked by Mr. Burcher, proprietor of the Glasgow Cafe, 2831 St. Louis Avenue, in the City of St. Louis, to stay at the cafe to guard the place for him; that the cafe closed about 1:30 A. M. on December 23, 1934, after which he and Mozenski were stationed in the back room; that he heard the officer on the beat at the door of the cafe about a half hour after the place had been closed; that shortly thereafter there was a noise and the door flew open and Louis Berne (the insured) ran in and ran the whole length of the bar, then around back of the bar; that after Berne got in back of the bar, the witness walked out of the back room and called "Stop"; that Berne jumped to the side and "pulled his overcoat back". Continuing, the witness then testified: "I had a gun in my hand and leveled on him and pulled the trigger. I shot him twice. He was then behind the bar at the cash register, and that was about 8 feet from the end of the bar where I was. The cash register is in back of the bar and was about 8 feet from where I was standing, which is about the distance I was from Louis Berne when I shot him."

The witness further testified that the cash register drawer had been closed, but, at the time he shot Berne, it was open; that there was some silver money thrown out of the drawer onto the floor. He then described how Mr. Mozenski called the police, and that he, the witness, turned the gun he had used over to the police who arrived on the scene shortly thereafter. On cross-examination, the witness testified that the police did not find any weapon of any kind on Berne except a small crowbar, also referred to in the testimony as a "jimmy"; that he did not know whether the "jimmy" was on the person or clothing of Berne or not; that he had never seen Berne that he knew of before the night he shot him; that Berne was turning toward the witness at the time witness shot him the first time; that when the witness fired the second time Berne fell, but before the second shot Berne was still standing. At this point the witness testified concerning Berne:

"Q. Was he facing the back of the bar? A. He was when I hollered at him and then he sort of turned around so that he was facing me at that time. Then I fired a shot and it looked like he took a step and then I gave him the second shot. It looked like he took a step as though he was going to step toward me."

Anthony Mozenski testified, as a witness for defendant, that he was with Lehmkuhl in the Glasgow Cafe on the night in question; that not very long after the patrolman left the door, he saw somebody else at the door, and all of a sudden the door flew open and Berne came running in, went all the way around the bar to the cash register and opened the cash register; that Lehmkuhl then came out and hollered at Berne to stop and Berne "turned and reached — looked like he was reaching for something; looked like he was — I don't know — just looked — I couldn't exactly see him because he was on the other side of Lehmkuhl.

"Q. Show the jury how he did, will you? A. (indicating) That's all; pulled back his overcoat, and that's all I saw, because I ducked back, because I thought maybe he had a gun or something, and would shoot. At the time Lehmkuhl shot at him, he was facing the cash register with his back to the front bar; then he swung his overcoat around."

The witness said that he heard the shot after Lehmkuhl shouted at Berne; that he then heard the second shot and while he did not see Berne fall, he did see him as he was lying right under the cash register; that he saw some silver money lying around on the floor. The witness stated he was there when the police arrived; that he did not see or hear of any pistol or weapon of any kind that was found on Berne's person except "just a jimmy bar"; and that the only time he saw the "jimmy bar" the officer had it in his hand and showed it to the other officers. The witness was asked by the court if he heard the cash register ring, and answered "No", it did not ring because it was not locked, it was pushed to. The witness then testified, in answer to questions by the court:

"Q. Did you hear the drawer open? A. Yes, sir.

"Q. And you actually saw him with his hands in the cash register? A. Yes, sir; I seen him with his hands in it.

"Q. Was it then that this man Lehmkuhl hollered at him? A. Yes, sir.

"Q. And, as you say, he turned to the right and made a gesture of some kind? A. Yes, sir.

"Q. And that is when this man shot him? A. Yes, sir; that is when I ducked back, because I didn't know what was going to happen.

"Q. Then you saw him — A. Laying on the floor."

Charles H. Boswell, a detective of the St. Louis Police Department, testified that, answering a radio call broadcast over the police radio, he entered the cafe about 2:45 on the morning of December 23rd, and found there two or three police officers in uniform, and saw Louis Berne lying back of the bar directly under the cash register drawer, which was open; that he knew Berne very well; that he assisted in removing Berne from back of the bar, and when he was moved they found what is known to the police department as a "jimmy" which was lying under Berne; that they took Berne to the City Hospital; that he (witness) later made an investigation around the cafe (also referred to in the testimony as the tavern), and found "jimmy" marks on the front door and doorsill and also in the door. "I fitted the jimmy I found into that indentation, and it fitted." That no pistol was found...